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NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



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CORRECTION 
GENERAL STATUTES 
EXECUTIVE ORDERS 
FINAL DECISION LETTERS 

PROPOSED RULES 

Administration 

Agriculture 

Human Resources 

Licensing Boards 

NR & CD 

Office of Administrative Hearings 

State Personnel 

LIST OF RULES AFFECTED 

ISSUE DATE: SEPTEMBER 15, 1987 
Volume 2 • Issue X* Pages 365-41 7 



v 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published monthly and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter I SOB of the 
General Statutes All proposed administrative rules and amend- 
ments filed under Chapter I50B must be published in the Register. 
The Register will typically comprise approximately one hundred 
pages per issue of legal text. 

State law requires that a copy of each issue be provided free 
of charge to each county in the stale and to various state officials 
and institutions. The North Carolina Register is available by 
yearly subscription at a cost of ninety-five dollars ($95.00) for 
12 issues. 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings. P. O. 
Drawer I 1666. Raleigh. N. C. 27604. Attn Subscriptions. 



ADOPTION. AMENDMENT, AND REPEAL OF RULES 

An agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register The notice must include a reference to the Statutory 
Authority for the action; the time and place of the public hearing 
and a statement of how public comments may be submitted to 
the agency either at the hearing or otherwise; the text of the 
proposed rule or amendment; and the proposed effective date 

The Director of the Office of Administrative Hearings has 
authority to publish a summary, rather than the full text, of any 
amendment which is considered to be too lengthy In such case, 
the full text of the rule containing the proposed amendment will 
be available for public inspection at the Rules Division of the 
Office of Administrative Hearings and at the office of the 
promulgating agency. 

Following publication of the proposal in the North Carolina 
Register, at least 60 days must elapse before the agency may take 
action on the proposed adoption, amendment or repeal. 

When final action is taken, the promulgating agency must file 
any adopted or amended rule with the Office of Administrative 
Hearings. If it differs substantially from the proposed form 
published as part of the public notice, the adopted version will 
again be published in the North Carolina Register 

A rule, or amended rule, cannot become effective earlier than 
the first day of the second calendar month after the adoption is 
filed. 

Proposed action on rules may be withdrawn by the pro- 
mulgating agency at any time before final action is taken by the 
agency. 

TEMPORARY RULES 

Under certain conditions of an emergency nature, some 
agencies may issue temporary rules. A temporary rule becomes 
effective when adopted and remains in effect for the period 
specified in the rule or 120 days, whichever is less. An agency 
adopting a temporary rule must begin normal rule-making 
procedures on the permanent rule at the same time the temporary 
rule is adopted. 



NORTH CAROLINA ADMINISTRATIVE CODE 

The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 stale 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15.000 letter size, single spaced pages 
of material of which approximately 35% is changed annually. 
Compilation and publication of the NCAC is mandated by G S 
!50B-63(b). 

The Code is divided into Titles and Chapters Each slate agency 
is assigned a separate title which is further broken down by 
chapters. Title 2 I is dcsignaied lor occupational licensing boards. 

The NCAC is available in two formats. 

( 1 ) In looseleaf pages at a minimum cost of two dollars and 
50 cents (S2 50) for 10 pages or less, plus fifteen cents 
($0 15) per each additional page 

(2) On microfiche The microfiche edition is revised semi- 
annually (March and October) and can be purchased for 
forty dollars ($40 00) per edition. Due to the volume 
of the Code, the complete copy can only be purchased on 
microfiche. The NCAC on microfiche is updated 
monthly by publication of a "List of Rules Affected" 
which jets out rules filed the previous month, the action 
taken, and the effective date of the change This list is 
published in the North Carolina Register 

Requests for looseleaf pages of rules «>r the NCAC on 
microfiche should be directed to the Office of Administrative 
Hearings 



NOTE 

The foregoing is a generalized statement of the procedures lo 
be followed For specific siatutory language, it is suggested that 
Articles 2 and 5 of Chapter I50B of the General Statutes by 
examined carefully. 



CITATION TO THE NORTH CAROLINA REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date 1:1 NCR 101-201, April 1, 1986 refers to 
Volume I . Issue 1 , pages 101 through 201 of the North Carolina 
Register issued on April I. 1986. 



North Carolina Register Published monthly by the 
Office of Administrative Hearings, P O. Drawer 11666, 
Raleigh. North Carolina 27604, pursuant to Chapter 150B 
of the General Statutes Subscriptions ninety-five dollars 
($95.00) per year. 

North Carolina Administrative Code. Published in 
March and October by the Office of Administrative 
Hearings, P. O. Drawer 11666, Raleigh, North Carolina 
27604, pursuant to Chapter 150B of the General Statutes. 
Subscriptions forty dollars ($40.00) per edition. 



' 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P.O. Drawer 11666 

Raleigh, NC 27604 

(919) 733 - 2678 



Robert A. Melott, 

Director 
James R. Scarcella, 

Deputy Director 
Molly Mason, 

Assistant Director 

Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Johnson, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 



ISSUE COM FATS 



I. CORRECTION 
NR&CD 

Coastal Management 365 

II. GENERAL STATUTES 

Chapter 150B 366 

Chapter 7A 382 

III. EXECUTIVE ORDERS 

Executive Order 54 384 

IV. FINAL DECISION LETTERS 

Voting Rights Act 385 



V. PROPOSED RULES 

Administration 

State Property 

and Construction 388 

State Construction 388 

Agriculture 
Structural Pest 

Control Division 393 

Human Resources 

Facility Services 393 

Medical Assistance 396 

Social Services Commission 397 

Licensing Boards 

Medical Examiners 403 

Mortuary' Science 404 

Opticians 404 

NR&CD 

Coastal Management 401 

Office of Administrative 
Hearings 

Hearings Division 408 

State Personnel 

Employee Benefits 408 

VI. FINAL RULES 

Transportation 

Division of Highways 410 

MI. LIST OF RULES AFFECTED 

Volume 12, No. 6 411 

(September 1, 1987) 

VIII. CUMULATIVE INDEX 415 



NORTH CAROLINA REGISTER 

Publication Deadlines and Schedules 

(September 1987 - March 1988) 



Issue 


Last Day 


Last Day 


Earliest 


* 


Date 


for 


for 


Date for 


Earliest 




Liling 


Electronic 


Public 


Effective 






Liling 


Hearing & 
Adoption by 
Agency 


Date 


******** 


******** 


******** 


******** 


******** 


09/15/87 


08/26/87 


09/02/87 


10/15/87 


01/01/88 


10/15/87 


09/25/87 


10/02/87 


11/14/87 


02/01/88 


11/16/87 


10/27/87 


11/03/87 


12/16/87 


03/01/88 


12/15/87 


11/23/87 


12/02/87 


01/14/88 


04/01/88 


01/15/88 


12/28/87 


01/04/88 


02/14/88 


05/01/88 


02/15/88 


01/26/88 


02/02,88 


03/16/88 


06/01/88 


03/15/88 


02/24/88 


03/02/88 


04/14/88 


07/01/88 



* The "Earliest Effective Date" is computed assuming that the public hearing 
and adoption occur in the calendar month immediately following the "Issue 
Date", that the agency files the rule with The Administrative Rules Review 
Commission by the 20th of the same calendar month and that ARRC approves 
the rule at the next calendar month meeting. 



CORRECTION 

CORRECTION AS PUBLISHED IN THE NORTH CAROLINA REGISTER, VOLUME 2, ISSUE 
4, ON PAGE 261. COASTAL MANAGEMENT REGULA HON CITED AS 15 NCAC 7H .1502 
SHOULD READ: 

.1502 APPROVAL PROCEDURE 

(a) The applicant must contact the Office Division of Coastal Management and complete an appli- 
cation form requesting approval for development. Applicants shall provide their name and address, the 
site location and the dimensions of the project area. 

(c) No work shall begin until an onsite meeting is held with the applicant and a Office Division of 
Coastal management representative to inspect and mark the proposed area of excavation and spoil 
disposal. Written authorization to proceed with the proposed development can be issued during this 
site visit. Maintenance All excavation must be completed within 90 days of the date of permit issuance, 
or the general authorization expires. 

Statutory Authority G.S. 113A-I07 (a), (b); 113A-II3 (b); I13A-I18 (1); 113-229 (cl). 



NOR TH CAROLINA REGIS TER 365 



GENERAL STATUTES OF NORTH CAROLINA 

CHAPTER 150B 

ADMINISTRATIVE PROCEDURE ACT 

As Amended Effective 9-1-87 



Article I. 
General Provisions. 
Policy and scope. 



I50B-1. Policy and scope. -- (a) The 
policy of the State is that the three powers of 
government, legislative, executive, and judicial, 
arc. and should remain, separate. The intent of 
this Chapter is to prevent the commingling of 
those powers in any administrative agency and 
to ensure that the functions of rule making, in- 
vestigation, advocacy, and adjudication are not 
all performed by the same person in the admin- 
istrative process. 

(b) The purpose of this Chapter is to establish 
as nearly as possible a uniform system of admin- 
istrative rule making and adjudicatory procedures 
for State agencies. 

(c) This Chapter shall apply to every agency, 
as defined in G.S. 1 50B-2( I), except to the extent 
and in the particulars that any statute, including 
subsection (d) of this section, makes specific 
provisions to the contrary. 

(d) The following are specifically exempted 
from the provisions of this Chapter: the Ad- 
ministrative Rules Review Commission, the 
Employment Security Commission, the Indus- 
trial Commission, the Occupational Safety and 
Health Review Board, and the Utilities Com- 
mission. 

The North Carolina National Guard is exempt 
from the provisions of this Chapter in exercising 
its court-martial jurisdiction. 

The Department of Human Resources is ex- 
empt from this Chapter in exercising its authority 
over the Camp Butner reservation granted in 
Article 6 of Chapter 122C of the General Stat- 
utes. 

The Department of Correction is exempt from 
the provisions of this Chapter, except for Article 
5 of this Chapter and G.S. 150B-13 which shall 
apply. 

Articles 2 and 3 of this Chapter shall not apply 
to the Department of Revenue. Except as pro- 
vided in Chapter 136 of the General Statutes, 
Articles 2 and 3 of this Chapter do not apply to 
the Department of Transportation. 

Article 4 of this Chapter, governing judicial re- 
view of final administrative decisions, shall apply 



to The University of North Carolina and its 
constituent or affiliated boards, agencies, and in- 
stitutions, but The University of North Carolina 
and its constituent or affiliated boards, agencies, 
and institutions are specifically exempted from 
the remaining provisions of this Chapter. Article 
4 of this Chapter shall not apply to the State 
Banking Commission, the Commissioner of 
Banks, the Savings and Loan Division of the 
Department of Commerce, and the Credit Union 
Division of the Department of Commerce. 

Article 3 of this Chapter shall not apply to 
agencies governed by the provisions of Article 3A 
of this Chapter, as set out in G.S. 150B-38(a). 

.Articles 3 and 3A of this Chapter shall not apply 
to the Governor's Waste Management Board in 
administering the provisions of G.S. 104E-6.2. 

Articles 3 and 3A of this Chapter shall not apply 
to the North Carolina Low-Level Radioactive 
Waste Management Authontv in administering 
the provisions of G.S. 104G-9, 104G-10, and 
104G-11. 

§ 150B-2. Definitions. -- As used in this 

Chapter, 

(01) "Administrative law judge" means a per- 
son appointed under G.S. 7A-752, 7A-753, 
or 7A-757. 

(1) "Agency" means any agency, institution, 
board, commission, bureau, department, di- 
vision, council, member of the Council of 
State, or officer of the State government of 
the State of North Carolina but does not 
include any agency in the legislative or judi- 
cial branch of the State government; and 
docs not include counties, cities, towns, vil- 
lages, other municipal corporations or poli- 
tical subdivisions of the State or any 
agencies of such subdivisions, or local 
boards of education, other local public dis- 
tricts, units or bodies of any kind, or private 
corporations created by act of the General 
Assembly. 

(2) "Contested case" means an administrative 
proceeding pursuant to this Chapter to re- 
solve a dispute between an agency and an- 
other person that involves the person's 
rights, duties, or privileges, including licens- 



366 



NORTH CAROLINA REGISTER 



ing or the levy of a monetary penalty. 
"Contested case" does not include 
rulemaking, declaratory rulings, or the award 
or denial of a scholarship or grant. 

(2a) "Effective" means that a valid rule has 
been filed as required by G.S. 150B-59 and, 
if applicable, that the time specified in that 
section has elapsed. A rule that is effective 
is enforceable to the extent permitted by law. 

(2b) "Hearing officer" means a person or 
group of persons designated by an agency 
that is subject to Article 3A of this Chapter 
to preside in a contested case hearing con- 
ducted under that Article. 

(3) "License" means any certificate, permit 
or other evidence, by whatever name called, 
of a right or privilege to engage in any ac- 
tivity, except licenses issued under Chapter 
20 and Subchapter I of Chapter 105 of the 
General Statutes and occupational licenses. 

(4) "Licensing" means any administrative 
action issuing, failing to issue, suspending, 
or revoking a license or occupational license. 
"Licensing" does not include controversies 
over whether an examination was fair or 
whether the applicant passed the examina- 
tion. 

(4a) "Occupational license" means any certif- 
icate, permit, or other evidence, by whatever 
name called, of a right or privilege to engage 
in a profession, occupation, or field of en- 
deavor that is issued by an occupational li- 
censing agency. 

(4b) "Occupational licensing agency" means 
any board, commission, committee or other 
agency of the State of North Carolina which 
is established for the primary purpose of 
regulating the entry of persons into, and or 
the conduct of persons within a particular 
profession, occupation or field of endeavor, 
and which is authorized to issue and revoke 
licenses. "Occupational licensing agency" 
does not include State agencies or depart- 
ments which may as only a part of their 
regular function issue permits or licenses. 

(5) "Party" means any person or agency 
named or admitted as a party or properly 
seeking as of right to be admitted as a party 
and includes the agency as appropriate. 
This subdivision does not permit an agency 
that makes a final decision, or an officer or 
employee of the agency, to petition for ini- 
tial judicial review of that decision. 

(6) "Person aggrieved" means any person or 
group of persons of common interest di- 
rectly or indirectly affected substantially in 
his or its person, property, or employment 
by an administrative decision. 



(7) "Person" means any natural person, part- 
nership, corporation, body politic and any 
unincorporated association, organization, or 
society which may sue or be sued under a 
common name. 

(8) "Residence" means domicile or principal 
place of business. 

(8a) "Rule" means any agency regulation, 
standard or statement of general applicabil- 
ity that implements or interprets laws en- 
acted by the General Assembly or Congress 
or regulations promulgated by a federal 
agency or describes the procedure or practice 
requirements of any agency not inconsistent 
with laws enacted by the General Assembly. 
The term includes the amendment or repeal 
of a prior rule. The term does not include 
the following: 

a. Statements concerning only the internal 
management of an agency or group of 
agencies, including policies and proce- 
dures manuals, if such a statement does 
not directly or substantially affect the 
procedural or substantive rights or duties 
of persons not employed by the agency 
or group of agencies. 

b. Budgets and budget policies and proce- 
dures issued by the Director of the 
Budget, by the head of a department, as 
defined by G.S. 143A-2 or G.S. 143B-3, 
by an occupational licensing board, as 
defined by G.S. 93B-1, or by the State 
Board of Llections. 

c. Nonbinding interpretive statements 
within the delegated authority of the 
agency that merely define, interpret or ex- 
plain the meaning of a statute or other 
provision of law or precedent. 

d. A form, the contents or substantive re- 
quirements of which are prescribed by rule 
or statute or the instructions for the exe- 
cution or use of the form. 

e. Statements of agency policy made in the 
context of another proceeding, including: 

1. Declaratory rulings under G.S. 
1 SOB- 17; 

2. Orders establishing or fixing rates or 
tariffs. 

f. Statements of agency policy, provided 
that the agency policy is not inconsistent 
with any law enacted by the General As- 
sembly, communicated to the public by 
use of signs or symbols, concerning: 

1. The use or creation of public roads or 
bridges; 

2. The boundaries of public facilities and 
times when public facilities are open to 
the public; or 

3. Safety in use of public facilities. 



NORTH CAROLINA REGISTER 



367 



g. Statements that set forth criteria or 
guidelines to be used by the staff of an 
agency in performing audits, investi- 
gations, or inspections; in settling financial 
disputes or negotiating financial arrange- 
ments; or in the defense, prosecution, or 
settlement of cases; 
h. Scientific, architectural, or engineering 
standards, forms, or procedures. 
(8b) "Substantial evidence" means relevant 
evidence a reasonable mind might accept as 
adequate to support a conclusion. 
(9) "Valid" means that the rule has been 
adopted pursuant to the procedure required 
by law. A valid rule is unenforceable until 
it becomes effective. 
§ 150B-3. Special provisions on licensing. 

-- (a) When an applicant or a licensee makes a 
timely and sufficient application for issuance or 
renewal of a license or occupational license, in- 
cluding the payment of any required license fee, 
the existing license or occupational license does 
not expire until a decision on the application is 
finally made by the agency, and if the application 
is denied or the terms of the new license or oc- 
cupational license are limited, until the last day 
for applying for judicial review of the agency or- 
der. This subsection docs not affect agency 
action summarily suspending a license or occu- 
pational license under subsections (b) and (c) of 
this section. 

(b) Before the commencement of proceedings 
for the suspension, revocation, annulment, with- 
drawal, recall, cancellation, or amendment of any 
license other than an occupational license, the 
agency shall give notice to the licensee, pursuant 
to the provisions of G.S. 150B-23. Before the 
commencement of such proceedings involving an 
occupational license, the agency shall give notice 
pursuant to the provisions of G.S. 150B-38. In 
either case, the Licensee shall be given an oppor- 
tunity to show compliance with all lawful re- 
quirements for retention of the license or 
occupational license. 

(c) If the agency finds that the public health, 
safety, or welfare requires emergency action and 
incorporates this finding in its order, summary 
suspension of a license or occupational license 
ma>' be ordered effective on the date specified in 
the order or on service of the certified copy of the 
order at the last known address of the licensee, 
whichever is later, and effective during the pro- 
ceedings. The proceedings shall be promptly 
commenced and determined. 

Nothing in this subsection shall be construed 
as amending or repealing any special statutes, in 
effect prior to February 1, 1976, which provide 
for the summary suspension of a license. 



Article 2. 
Rule Making. 
§ 150B-9. Minimum procedural require- 

ments; limitations on ruTe-making authority; 
criminal sanction^ authorized. - (a) It is the 
intent of this Article to establish basic minimum 
procedural requirements for the adoption, 
amendment, or repeal of administrative rules. 
Except for temporary rules which are provided 
for in G.S. 1 SOB- 13, the provisions of this Article 
arc applicable to the exercise of any rule-making 
authority conferred by any statute, but nothing 
in this Article repeals or diminishes additional 
requirements imposed by law or any summary 
power granted by law to the State or any State 
agency. No rule hereafter adopted is valid unless 
adopted in substantial compliance with this Ar- 
ticle. 

(b) Each agency shall adopt, amend, suspend 
or repeal its rules in accordance with the proce- 
dures specified in this Article and pursuant to 
authority delegated by law and in full compliance 
with its duties and obligations. No agency may 
adopt any rule that implements or interprets any 
statute or other legislative enactment unless the 
power, duty, or authority to carry out the pro- 
visions of the statute or enactment is specifically 
conferred on the agency in the enactment, nor 
may any agency make any rule enlarging the 
scope of any trade or profession subject to li- 
censing. 

(c) The power to declare what shall constitute 
a crime and how it shall be punished and the 
power to establish standards for public conduct 
are vested exclusively in the General Assembly. 
No agency may adopt any rule imposing a crim- 
inal penalty for any act or failure to act, including 
the violation of any rule, unless the General As- 
sembly authorizes a criminal sanction and speci- 
fies a criminal penalty for violation of the rule. 

(d) No agency may adopt as a rule the verbatim 
text of any federal or North Carolina statute or 
any federal regulation, but an agency may adopt 
all or any part of such text bv reference under 
G.S. 150B-14. 

§ 150B-10. Statements of organization and 
means of access to be published. -- lo assist 
interested persons dealing with it. each agency 
shall, in a manner prescribed by the Director of 
the Office of Administrative Hearings, prepare a 
description of its organization, stating the process 
whereby the public may obtain information or 
make submissions or requests. The Director of 
the Office of Administrative Hearings shall pub- 
lish these descriptions annually. 

§ I50B-11. Special requirements. -- In ad- 
dition to other rule-making requirements im- 
posed by law, each agency shall: 



368 



NORTH CAROLINA REGISTER 



(1) Adopt rules setting forth the nature and 
requirements of all formal and informal 
proeedures available, including a listing of 
all forms that are required by the agency. 
Procedures concerning only internal man- 
agement which do not directly affect the 
rights of or procedures available to the pub- 
lic shall not be adopted as rules. 

(2) Make available for public inspection all 
rules and all other written statements of 
policy or interpretations formulated, 
adopted, or used by the agency in the dis- 
charge of its functions, except those used 
only for internal management of the agency. 

(3) Submit to the Director of the Budget a 
summary of any proposed rule requiring the 
expenditure or distribution of State funds 
and obtain approval of such expenditure or 
distribution of State funds prior to publish- 
ing the notice of public hearing required by 
G.S. 150B-12(2). For purposes of this sub- 
division the term "State funds" shall have 
the same meaning as is set out in G.S. 143-1 
and shall also apply to the funds of all oc- 
cupational licensing boards included under 
G.S. 1 5013- 1. The agency shall include a 
fiscal note with any proposed rule, other 
than a temporary rule, so submitted. The 
fiscal note shall state what effect, if any, the 
proposed rule will have on the revenues, ex- 
penditures, or fiscal liability of the State or 
its agencies or subdivisions. The fiscal note 
shall include an explanation of how such ef- 
fect, if any, was computed. 

(4) Submit a fiscal note in accordance with 
G.S. 120-30.48 for a proposed rule that af- 
fects the expenditures or revenues of a unit 
of local government. The fiscal note shall 
be submitted no later than the date when a 
notice of public hearing on the proposed 
rule is published in the North Carolina 
Register. The notice shall state that a fiscal 
note has been prepared for the proposed rule 
and may be obtained from the agency. An 
erroneous fiscal note prepared in good faith 
docs not affect the validity of a rule. 

§ 150B-12. Procedure for adoption of rules. 
— (a) Before the adoption, amendment or repeal 
of a rule, an agency shall give notice of a public 
hearing and offer any person an opportunity to 
present data, opinions, and arguments. The no- 
tice shall be given within the time prescribed by 
any applicable statute, or if none then at least 30 
days before the public hearing and before the 
adoption, amendment, or repeal of the rule. The 
notice shall include: 

(1) A reference to the statutory authority un- 
der which the action is proposed; 



(2) The time and place of the public hearing 
and a statement of the manner in which 
data, opinions, and arguments may be sub- 
mitted to the agency cither at the hearing or 
at other times by any person; and 

(3) The text of the proposed rule, or amend- 
ment in the form required by G.S. 
150B-63(d2) and the proposed effective date 
of the rule or amendment. 

(b) Repealed. 

(c) The agency shall publish the notice in the 
North Carolina Register and as prescribed in any 
applicable statute. 

The agency may also publish the notice or a 
synopsis of the notice in other ways selected by 
the agency to give notice to persons likely to be 
affected by the proposed rule. Methods that may 
be employed by the agency, depending upon the 
circumstances, include publication of the notice 
in one or more newspapers of general circulation 
or, when appropriate, in trade, industry, govern- 
mental or professional publications. 

(d) The public hearing shall not be conducted 
as a contested case unless a specific statute re- 
quires that the proposed rule be adopted by 
adjudicatory procedures. 

(e) The proposed rule shall not be changed or 
modified after the notice required by this section 
is published and before the rule-making hearing. 
The agency shall consider fully all written and 
oral submissions respecting the proposed rule. 
Upon adoption of a rule, the agency, if requested 
to do so by an interested person either prior to 
adoption or within 30 days thereafter, shall issue 
a concise statement of the principal reasons for 
and against its adoption, incorporating therein its 
reasons for overruling the consideration urged 
against its adoption. The record in every rule- 
making proceeding under this Article shall re- 
main open at least 30 days cither before or after 
the hearing for the purposes of receiving written 
comments, and any such comments shall be in- 
cluded in the hearing records. All comments re- 
ceived, as well as any statement of reasons issued 
to an interested person under this section, shall 
be included in the rule-making record. 

(f) No rule-making hearing is required for the 
adoption, amendment, or repeal of a rule which 
solely describes forms or instructions used by the 
agency. 

(g) No rule-making hearing is required if the 
Director of the Office of Administrative I Iearings 
determines that the amendment to a rule does 
not change the substance of the rule' and that the 
amendment is: 

(1) A rclettering or renumbering instruction; 
or, 



NORTH CAROLINA REGISTER 



369 



(2) The substitution of one name for another 
when an organization or position is re- 
named: or. 

(3) The correction of a citation to rules or 
laws which has become inaccurate since the 
rule was adopted because of repealing or re- 
numbering of the rule or law cited; or 

(4) The correction of a similar formal defect; 
or 

(5) A change in information that is readily 
available to the public such as addresses and 
telephone numbers. 

(h) No rule-making hearing is required to re- 
peal a rule if the repeal of the rule is specifically 
provided for by the Constitution of the United 
States, the Constitution of North Carolina, any 
federal or North Carolina statute, any federal 
regulation, or a court order. No rule-making 
hearing is required to amend or repeal a rule to 
complv with G.S. 143B-30.2 in accordance with 
G.S. 150B-59(c). 

§ 150B-13. Temporary rules. -- (a) Except 
as provided in subsection (b) of this section, if 
an agency which is not exempted from the notice 
and hearing requirements of this Article by G.S. 
150B-1 determines in writing that; 

( 1 ) Adherence to the notice and hearing re- 
quirements of this Article would be contrary 
to the public interest; and that 

(2) The immediate adoption, amendment, or 
repeal of a rule is necessitated by and related 
to: 

a. A serious and unforseeable threat to 
public health, safety, or welfare; 

b. The effective date of a recent act of the 
General Assembly or the United States 
Congress; 

c. A recent change in federal or state budg- 
etary policy; 

d. A federal regulation; or 

e. A court order, 

the agency may adopt, amend, or repeal the rule 
without prior notice or hearing or upon any ab- 
breviated notice or hearing the agency finds 
practicable. The agency must accompany its 
rules filing with the Director of the Office of Ad- 
ministrative I Iearings and the Governor with the 
agency's written certification of the finding of 
need for the temporary rule, together with the 
reasons for that finding and a copy of the notice 
of hearing on the proposed permanent rule. 

(al) The written certification of the finding 
of need for the temporary rule shall be signed by: 
( 1 ) The member of the Council of State in the 
case of the Departments of Justice. Insur- 
ance. Public Education. I abor. Agriculture, 
Treasurer. State Auditor, or Secretary of 
State. 



(2) The chairman of the board in the case of 
an occupational licensing board or the Di- 
rector of the Office of Administrative 
Hearings in the case of that agency. 

(3) The Governor in the case of all other 
agencies. 

(b) If the Department of Crime Control and 
Public Safety, Transportation, Revenue, or Cor- 
rection determines in writing that the immediate 
adoption, amendment, or repeal of a rule is ne- 
cessitated by: 

(1) The public health, safety, or welfare; 

(2) The effective date of a recent act of the 
General Assembly or the United States 
Congress; 

(3) A federal regulation; or 

(4) A court order, 

the agency may adopt, amend, or repeal the rule. 
The agency must accompany its rule filing with 
the Director of the Office of Administrative 
Hearings and the Governor with the agency's 
written certification of the finding of need for the 
temporary rule signed by the Governor together 
with the reasons for that finding. In the case of 
the Department of Correction, in addition to the 
reasons set forth in subdivisions (1) through (4) 
of this subsection, the Department may file a 
temporary rule when necessary for the manage- 
ment and control of persons under the custody 
or supervision of the Department in extraor- 
dinary circumstances as certified by the Secretary. 
The Department shall file any temporary rule 
within two working days of its adoption by the 
Secretary under G.S. 14S-1 1. 

(c) Rules filed under subsections (a) and (b) 
of this section shall be effective for a period of 
not longer than 180 days and are subject to re- 
view as provided in G.S. 143B-30.2(i). An 
agency adopting a temporary rule shall begin 
normal rule-making procedures on the perma- 
nent rule under this .Article at the same time the 
temporary rule is adopted. 

§ I50B-14. Adoption b y reference. — (a) 

An agency may adopt by reference m its rules, 
without publishing the adopted matter in full: 

(1) All or any part of a code, standard, or 
regulation which has been adopted by any 
other agency of this State or by any agency 
of the United States or by a generally re- 
cognized organization or association; 

(2) Any plan or material which is adopted to 
meet the requirements of any agency of the 
United States and approved by that agency; 

(3) Any plan, material, manual, guide or other 
document establishing job application or 
employment practices or procedures of any 
State agency other than the State Personnel 
Commission. The State Personnel Com- 
mission, however, shall incorporate by ref- 



370 



\ORTH CAROLINA REGISTER 



crence in its rules job classification 
standards, including but not limited to those 
relating to qualifications and salary levels; 
or 
(4) The hearings division rules promulgated 

by the Office of Administrative Hearings. 
In adopting matter by reference, the agency 
shall specify in the rule and in the Register 
whether such adoption is in accordance with the 
provisions of subsection (b) or (c) of this section. 
The agency can change this election only by a 
subsequent rulemaking proceeding. 

(b) If an agency adopts matter by reference in 
accordance with this subsection, such reference 
shall not cover any later amendments and edi- 
tions of the adopted matter, but if the agency 
wishes to incorporate them in its rule it shall 
amend the rule or promulgate a new rule. 

(c) If any agency adopts matter by reference in 
accordance with this subsection, such reference 
shall automatically include any later amendments 
and editions of the adopted matter. 

(d) An agency may cross-reference its own rules 
in the North Carolina Administrative Code 
without violating the provisions of (a)(1) of this 
section. 

§ 1 SOB- 15. Continuation of rules. —When 
a law authorizing or directing an agency to 
promulgate rules is repealed, and (i) substantially 
the same rule-making power or duty is vested in 
the same or a successor agency by a new pro- 
vision of law, or (ii) the function of the agency 
to which the rules are related is transferred to 
another agency by law or executive order, the 
existing rules of the original agency shall continue 
in effect until amended or repealed, and the 
agency or successor agency may repeal any rule 
relating to the transferred duty or function. 
When a law creating an agency or authorizing or 
directing it to promulgate rules is repealed or the 
agency is abolished and (i) substantially the same 
rule-making power or duty is not vested in the 
same or a successor agency by a new provision 
of law and (ii) the function of the agency to 
which the rules are related is not transferred to 
another agency, the existing applicable rules of 
the original agency are automatically repealed as 
of the effective date of the law repealing the 
agency's rule-making power or abolishing the 
agency. 

§ 1 SOB- 16. Petition for adoption of rules. 

— Any person may petition an agency to 
promulgate, amend, or repeal a rule, and may 
accompany his petition with such data, views, 
and arguments as he thinks pertinent. Each 
agency shall prescribe by rule the form for pe- 
titions and the procedure for their submission, 
consideration, and disposition. Within 30 days 
after submission of a petition, the agency shall 



either deny the petition in writing, stating its 
reasons for the denial, or initiate rule-making 
proceedings in accordance with G.S. 150B-12 
and G.S. 150B-13; provided, however, commis- 
sions and boards shall act on a petition at their 
next regularly scheduled meeting, but in any case 
no later than 120 days after submission of a pe- 
tition. Denial of the petition to initiate rule 
making under this section shall be considered a 
final agency decision for purposes of judicial re- 
view. 

§ 150B-17. Declaratory' rulings. — On re- 
quest of a person aggrieved, an agency shall issue 
a declaratory ruling as to the validity of a rule or 
as to the applicability to a given state of facts of 
a statute administered by the agency or of a rule 
or order of the agency, except when the agency 
for good cause finds issuance of a ruling undesir- 
able. The agency shall prescribe in its rules the 
circumstances in which rulings shall or shall not 
be issued. A declaratory' ruling is binding on the 
agency and the person requesting it unless it is 
altered or set aside by the court. An agency may 
not retroactively change a declaratory ruling, but 
nothing in this section prevents an agency from 
prospectively changing a declaratory ruling. A 
declaratory ruling is subject to judicial review in 
the same manner as an order in a contested case. 
Failure of the agency to issue a declaratory ruling 
on the merits within 60 days of the request for 
such ruling shall constitute a denial of the request 
as well as a denial of the merits of the request and 
shall be subject to judicial review. 
Article 3. 
Administrative Hearings. 

§ 150B-22. Settlement; contested case. -- It 
is the policy of this State that any dispute be- 
tween an agency and another person that in- 
volves the person's rights, duties, or privileges, 
including licensing or the levy of a monetary 
penalty, should be settled through informal pro- 
cedures. In trying to reach a settlement through 
informal procedures, the agency may not conduct 
a proceeding at which sworn testimony is taken 
and witnesses may be cross-examined. 
Notwithstanding any other provision of law, if 
the agency and the other person do not agree to 
a resolution of the dispute through informal 
procedures, either the agency or the person may 
commence an administrative proceeding to de- 
termine the person's rights, duties, or privileges, 
at which time the dispute becomes a "contested 
case." 

§ 150B-23. Commencement; assignment of 
administrative law judge; hearing required; no- 
tice; intervention. -- (a) A contested case shall 
be commenced by filing a petition with the Office 
of Administrative Hearings and, except as pro- 
vided in Article 3A of this Chapter, shall be 






NORTH CAROLINA REGISTER 



371 



conducted by that Office. The party who files 
the petition shall also serve a copy of the petition 
on all other parties and shall file a certificate of 
service together with the petition. Any petition 
tiled by a party other than an agency shall be 
verified or supported by affidavit and shall state 
facts tending to establish that the agency named 
as the respondent has deprived the petitioner of 
property, has ordered the petitioner to pay a fine 
or civil penalty, or has otherwise substantially 
prejudiced the petitioner's rights and that the 
agency: 

( 1 ) Exceeded its authority or jurisdiction; 

(2) Acted erroneously; 

(3) Failed to use proper procedure; 

(4) Acted arbitrarily or capriciously; or 

(5) Failed to act as required by law or rule. 
The parties in a contested case shall be given an 
opportunity for a hearing without undue delay. 
Any person aggrieved may commence a con- 
tested case hereunder. 

A local government employee, applicant for 
employment, or former employee to whom 
Chapter 126 of the General Statutes applies may 
commence a contested case under this Article in 
the same manner as any other petitioner. The 
case shall be conducted in the Office of Admin- 
istrative Hearings in the same manner as other 
contested cases under this Article, except that the 
decision of the State Personnel Commission shall 
be advisory only and not binding on the local 
appointing authority, unless (1) the employee, 
applicant, or former employee has been subjected 
to discrimination prohibited by Article 6 of 
Chapter 126 of the General Statutes or (2) ap- 
plicable federal standards require a binding deci- 
sion. In these two cases, the State Personnel 
Commission's decision shall be binding. 

(b) The parties shall be given notice not less 
than 15 days before the hearing by the Office of 
Administrative Hearings, which notice shall in- 
clude: 

(1) A statement of the date, hour, place, and 
nature of the hearing; 

(2) A reference to the particular sections of the 
statutes and rules involved: and 

(3) A short and plain statement of the factual 
allegations. 

(c) Notice shall be given personally or by cer- 
tified mail. If given by certified mail, it shall be 
deemed to have been given on the deliver.' date 
appearing on the return receipt. If giving of no- 
tice cannot be accomplished either personalis or 
by certified mail, notice shall then be given in the 
manner provided in G.S. 1A-1, Rule 4(jl). 

(d) Any person may petition to become a party 
by filing a motion to intervene in the manner 
presided in G.S. 1A-1. Rule 24. In addition, any 
person interested in a contested case may inter- 



vene and participate in that proceeding to the 
extent deemed appropriate by the administrative 
law judge. 

(e) All hearings under this Chapter shall be 
open to the public. I learings shall be conducted 
in an impartial manner. Hearings shall be con- 
ducted according to the procedures set out in this 
Article, except to the extent and in the particulars 
that specific hearing procedures and time stand- 
ards are governed by another statute. 

§ 150B-24. Venue of hearing. -- (a) The 
hearing of a contested case shall be conducted: 

( 1 ) In the county in this State in which any 
person whose property or rights arc the 
subject matter of the hearing maintains his 
residence; 

(2) In the county where the agency maintains 
its principal office if the property or rights 
that are the subject matter of the hearing do 
not affect any person or if the subject matter 
of the hearing is the property or rights of 
residents of more than one county; or 

(3) In any county determined by the admin- 
istrative law judge in his discretion to pro- 
mote the ends of justice or better serve the 
convenience of witnesses. 

(b) .Any person whose property or rights are 
the subject matter of the hearing waives his ob- 
jection to venue by proceeding in the hearing. 

5 150B-25. Conduct of hearing; answer. -- 



(a) If a party fails to appear in a contested case 
after proper service of notice, and if no 
adjournment or continuance is granted, the ad- 
ministrative law judge may proceed with the 
hearing in the absence of the party. 

(b) A parts' who has been served with a notice 
of hearing may file a written response, and a copy 
must be mailed to all other parties not less than 
10 days before the date set for hearing. 

(c) The parties shall be given an opportunity 
to present arguments on issues of law and policy 
and an opportunity to present evidence on issues 
of fact. 

(d) A party may cross-examine any witness, 
including the author of a document prepared by, 
on behalf of, or for use of the agency and offered 
in evidence. Any party may submit rebuttal ev- 
idence. 

§ 150B-26. Consolidation. -- When con- 

tested cases involving a common question of law 
or fact or multiple proceedings involving the 
same or related parties are pending, the Director 
of the Office of Administrative Hearings may or- 
der a joint hearing of any matters at issue in the 
cases, ci'der the cases consolidated, or make other 
orders to reduce costs or delay in the proceedings. 

§ 150B-27. Subpoena. -- After the com- 

mencement of a contested case, the administra- 
tive law judge may issue subpoenas upon his 



372 



SORTH CAROLINA REGISTER 



own motion or upon a written request. When a 
written request for a subpoena has been made, 
the administrative law judge shall issue the re- 
quested subpoenas forthwith requiring the at- 
tendance and testimony of witnesses and the 
production of evidence including books, records, 
correspondence, and documents in their pos- 
session or under their control. Upon written re- 
quest, the administrative law judge shall revoke 
a subpoena if, upon a hearing, he finds that the 
evidence the production of which is required does 
not relate to a matter in issue, or if the subpoena 
does not describe with sufficient particularity the 
evidence the production of which is required, or 
if for any other reason sufficient in law the 
subpoena is invalid. Witness fees shall be paid 
by the party requesting the subpoena to 
subpoenaed witnesses in accordance with G.S. 
7A-314. However, State officials or employees 
who are subpoenaed shall not be entitled to wit- 
ness fees, but they shall receive their normal sal- 
ary and they shall not be required to take any 
annual leave for the witness days. Travel ex- 
penses of State officials or employees who are 
subpoenaed shall be reimbursed as provided in 
G.S. 138-6. 

§ 150B-2S. Depositions and discovery. -- 

(a) A deposition may be used in lieu of other 
evidence when taken in compliance with the 
Rules of Civil Procedure, G.S. 1A-1. Parties in 
contested cases may engage in discover) pursuant 
to the provisions of the Rules of Civil Procedure, 
G.S. 1A-1. 

(b) On a request for identifiable agency records, 
with respect to material facts involved in a con- 
tested case, except records related solely to the 
internal procedures of the agency or which are 
exempt from disclosure by law, an agency shall 
promptly make the records available to a party. 

§ 150B-29. Rules of evidence, -(a) In all 
contested cases, irrelevant, immaterial and un- 
duly repetitious evidence shall be excluded. Ex- 
cept as otherwise provided, the rules of evidence 
as applied in the trial division of the General 
Court of Justice shall be followed; but, when ev- 
idence is not reasonably available under the rules 
to show relevant facts, then the most reliable and 
substantial evidence available shall be admitted. 
It shall not be necessary for a party or his attor- 
ney to object at the hearing to evidence in order 
to preserve the right to object to its consideration 
by the administrative law judge in making a re- 
commended decision, by the agency in making a 
final decision, or by the court on judicial review. 

(b) Evidence in a contested case, including re- 
cords and documents, shall be offered and made 
a part of the record. Factual information or ev- 
idence not made a part of the record shall not be 
considered in the determination of the case, ex- 



cept as permitted under G.S. 150B-30. Docu- 
mentary evidence may be received in the form of 
a copy or excerpt or may be incorporated by 
reference, if the materials so incorporated are 
available for examination by the parties. Upon 
timely request, a party shall be given an oppor- 
tunity to compare the copy with the original if 
available. 

§ I50B-30. Official notice. - Official notice 
may be taken of all facts of which judicial notice- 
may be taken and of other facts within the spe- 
cialized knowledge of the agency. The noticed 
fact and its source shall be stated and made 
known to affected parties at the earliest practica- 
ble time, and any party shall on timely request 
be afforded an opportunity to dispute the noticed 
fact through submission of evidence and argu- 
ment. 

§ 150B-31. Stipulations. -- (a) The parties 
in a contested case may, by a stipulation in writ- 
ing filed with the administrative law judge, agree 
upon any fact involved in the controversy, which 
stipulation shall be used as evidence at the hear- 
ing and be binding on the parties thereto. Parties 
should agree upon facts when practicable. 

(b) Except as otherwise provided by law, dis- 
position may be made of a contested case by 
stipulation, agreed settlement, consent order, 
waiver, default, or other method agreed upon by 
the parties. 

§ 150B-32. Designation of administrative law- 
judge. -- (a) The Director of the Office of Ad- 
ministrative Hearings shall assign himself or an- 
other administrative law judge to preside over a 
contested case. 

(b) On the filing in good faith by a party of a 
timely and sufficient affidavit of personal bias or 
disqualification of an administrative law judge, 
the administrative law judge shall determine the 
matter as a part of the record in the case, and this 
determination shall be subject to judicial review 
at the conclusion of the proceeding. 

(c) When an administrative law judge is dis- 
qualified or it is impracticable for him to con- 
tinue the hearing, the Director shall assign 
another administrative law judge to continue 
with the case unless it is shown that substantial 
prejudice to any party will result, in which event 
a new hearing shall be held or the case dismissed 
without prejudice. 

§ 150B-33. Powers of administrative law- 

judge. -- (a) An administrative law judge shall 
stay any contested case under this Article on 
motion of an agency which is a party to the 
contested case, if the agency shows by supporting 
affidavits that it is engaged in other litigation or 
administrative proceedings, by whatever name 
called, with or before a federal agency, and this 
other litigation or administrative proceedings will 



NORTH CAROLINA REGISTER 



373 



determine the position, in whole or in part, of the 
agency in the contested case. At the conclusion 
of the other litigation or administrative pro- 
ceedings, the contested case shall proceed and be 
determined as expeditiously as possible, 
(b) An administrative law judge may: 

( 1) Administer oaths and affirmations; 

(2) Sign and issue subpoenas in the name of 
the Office of Administrative Hearings, re- 
quiring attendance and giving of testimony 
by witnesses and the production of books, 
papers, and other documentary evidence; 

(3) Provide for the taking of testimony by 
deposition; 

(4) Regulate the course of the hearings, in- 
cluding discovery, set the time and place for 
continued hearings, and fix the time for filing 
of briefs and other documents; 

(5) Direct the parties to appear and confer to 
consider simplification of the issues by con- 
sent of the parties; 

(6) Stay the contested action by the agency 
pending the outcome of the case, upon such 
terms as he deems proper, and subject to the 
provisions of G.S. 1A-1, Rule 65; 

(7) Determine whether the hearing shall be 
recorded by a stenographer or by an elec- 
tronic device; and 

(8) Apply to any judge of the Superior Court 
resident in the district or presiding at a term 
of court in the county where a hearing is 
pending for an order to show cause why any 
person should not be held in contempt, and 
the Court shall have the power to impose 
punishment as for contempt for acts which 
would constitute direct or indirect contempt 
if the acts occurred in an action pending in 
superior court. 

(9) Determine that a rule as applied in a par- 
ticular case is void because ( 1 ) it is not 
within the statutory authority of the agency, 
(2) is not clear and unambiguous to persons 
it is intended to direct, guide, or assist, or (3) 
is not reasonably necessary to enable the 
agency to perform a function assigned to it 
by statute or to enable or facilitate the im- 
plementation of a program or policy in aid 
of which the rule was adopted. 

§ 150B-34. Recommended decision or order 
of administrative law judge, --(a) In a contested 
case, the administrative law judge shall make a 
recommended decision or order that contains 
findings of fact and conclusions of law. 

(b) After hearing the contested case and prior 
to issuing a recommended decision, the adminis- 
trative law judge shall give each party an oppor- 
tunity to file proposed findings of fact and to 
present written arguments to him. 



§ 150B-35. No ex parte communication; 

exceptions. -- Unless required tor disposition of 
an ex parte matter authorized by law, neither the 
administrative law judge assigned to a contested 
case nor a member or employee of the agency 
making a final decision in the case may commu- 
nicate, directly or indirectly, in connection with 
any issue of fact, or question of law, with any 
person or party or his representative, except on 
notice and opportunity for all parties to partic- 
ipate. 

§ 150B-36. Pinal decision, --(a) Before the 
agency makes a final decision, it shall give each 
party an opportunity to file exceptions to the 
decision recommended by the administrative law 
judge, and to present written arguments to those 
in the agency who will make the final decision 
or order. 

(b) A final decision or order in a contested case 
shall be made by the agency in writing after re- 
view of the official record as defined in G.S. 
150B-37(a) and shall include findings of fact and 
conclusions of law. If the agency does not adopt 
the administrative law judge's recommended de- 
cision as its final decision, the agency shall state 
in its decision or order the specific reasons why 
it did not adopt the administrative law judge's 
recommended decision. The agency may con- 
sider only the official record prepared pursuant 
to G.S. 150B-37 in making a final decision or 
order, and the final decision or order shall be 
supported by substantial evidence admissible un- 
der G.S. 150B-29(a), 150B-30, or 150B-31. A 
copy of the decision or order shall be served 
upon each party personally or by certified mail 
addressed to the party at the latest address given 
by the party to the agency, and a copy shall be 
furnished to his attorney of record and the Office 
of Administrative Hearings. 

§ 150B-37. Official record, -(a) In a 

contested case, the Office ot Administrative 
Hearings shall prepare an official record of the 
case that includes: 

( 1 ) Notices, pleadings, motions, and interme- 
diate rulings; 

(2) Questions and offers of proof, objections, 
and rulings thereon; 

(3) Evidence presented; 

(4) Matters officially noticed, except matters 
so obvious that a statement of them would 
serve no useful purpose; and 

(5) The administrative law judge's recom- 
mended decision or order. 

(b) Proceedings at which oral evidence is pre- 
sented shall be recorded, but need not be tran- 
scribed unless requested by a party. Pach party 
shall bear the cost of the transcript or part thereof 
or copy of said transcript or part thereof which 
said party requests, and said transcript or part 



374 



NORTH CAROLINA REGISTER 



thereof shall be added to the official record as an 
exhibit. 

(c) The Office of Administrative I Iearings shall 

forward a copy of the official record to the agency 

making the final decision and shall forward a 

copy of the recommended decision to each party. 

Article 3 A. 

Other Administrative Hearings. 

§ 150B-38. Scope; required; notice; venue. 
-- (a) The provisions of this Article shall apply 
to the following agencies: 

(1) Occupational licensing agencies; 

(2) The State Banking Commission, the 
Commissioner of Banks, the Savings and 
Loan Division of the Department of Com- 
merce, and the Credit Union Division of the 
Department of Commerce; and 

(3) The Department of Insurance and the 
Commissioner of Insurance. 

(b) Prior to any agency action in a contested 
case, the agency shall give the parties in the case 
an opportunity for a hearing without undue delay 
and notice not less than 15 days before the hear- 
ing. Notice to the parties shall include: 

(1) A statement of the date, hour, place, and 
nature of the hearing; 

(2) A reference to the particular sections of the 
statutes and rules involved; and 

(3) A short and plain statement of the facts 
alleged. 

(c) Notice shall be given personally or by cer- 
tified mail. If given by certified mail, notice shall 
be deemed to have been given on the delivery 
date appearing on the return receipt. If notice 
cannot be given personally or by certified mail, 
then notice shall be given in the manner provided 
inG.S. 1A-1, Rule4(jl). 

(d) A party who has been served with a notice 
of hearing may file a written response with the 
agency. If a written response is filed, a copy of 
the response must be mailed to all other parties 
not less than 10 days before the date set for the 
hearing. 

(e) All hearings conducted under this Article 
shall be open to the public. A hearing conducted 
by the agency shall be held in the county where 
the agency maintains its principal office. A 
hearing conducted for the agency by an admin- 
istrative law judge requested under G.S. 150B-40 
shall be held in a county in this State where any 
person whose property or rights are the subject 
matter of the hearing resides. If a different venue 
would promote the ends of justice or better serve 
the convenience of witnesses, the agency or the 
administrative law judge may designate another 
county. A person whose property or rights are 
the subject matter of the hearing waives his ob- 
jection to venue if he proceeds in the hearing. 



(f) Any person may petition to become a party 
by filing with the agency or hearing officer a 
motion to intervene in the manner provided by 
G.S. 1A-1, Rule 24. In addition, any person in- 
terested in a contested case under this Article 
may intervene and participate to the extent 
deemed appropriate by the agency hearing offi- 
cer. 

(g) When contested cases involving a common 
question of law or fact or multiple proceedings 
involving the same or related parties are pending 
before an agency, the agency may order a joint 
hearing of any matters at issue in the cases, order 
the cases consolidated, or make other orders to 
reduce costs or delay in the proceedings. 

(h) Every agency shall adopt rules governing 
the conduct of hearings that are consistent with 
the provisions of this Article. 

§ 150B-39. Depositions; discovery; 

subpoenas. -- (a) A deposition may be used in 
lieu of other evidence when taken in compliance 
with the Rules of Civil Procedure, G.S. 1A-1. 
Parties in a contested case may engage in dis- 
covery pursuant to the provisions of the Rules 
of Civil Procedure, G.S. 1A-1. 

(b) Upon a request for an identifiable agency 
record involving a material fact in a contested 
case, the agency shall promptly provide the re- 
cord to a party, unless the record relates solely to 
the agency's internal procedures or is exempt 
from disclosure by law. 

(c) An agency may issue subpoenas in prepa- 
ration for, or in the conduct of, a contested case 
upon its own motion. If a written request is 
made by a party in a contested case, an agency 
shall issue subpoenas forthwith requiring the at- 
tendance and testimony of witnesses and the 
production of evidence including books, records, 
correspondence, and documents in their pos- 
session or under their control. Upon written re- 
quest, the agency shall revoke a subpoena if, 
upon a hearing, the agency finds that the evi- 
dence, the production of which is required, does 
not relate to a matter in issue, or if the subpoena 
does not describe with sufficient particularity the 
evidence the production of which is required, or 
if for any other reason sufficient in law the 
subpoena is invalid. Witness fees shall be paid 
by the party requesting the subpoena to 
subpoenaed witnesses in accordance with G.S. 
7A-314. However, State officials or employees 
who are subpoenaed shall not be entitled to any 
witness fees, but they shall receive their normal 
salary and they shall not be required to take any 
annual leave for the witness days. Travel ex- 
penses of State officials or employees who are 
subpoenaed shall be reimbursed as provided in 
G.S. 138-6. 



NORTH CAROLINA REGISTER 



375 



§ I50B-40. Conduct of hearing; presiding 

officer; ex parte communication, —(a) Hearings 
shall be conducted in a fair and impartial manner. 
At the hearing, the agency and the parties shall 
be given an opportunity to present evidence on 
issues of fact, examine and cross-examine wit- 
nesses, including the author of a document pre- 
pared by, on behalf of or for the use of the 
agency and offered into evidence, submit rebuttal 
evidence, and present arguments on issues of law 
or policy. 

If a party fails to appear in a contested case after 
he has been given proper notice, the agency may 
continue the hearing or proceed with the hearing 
and make its decision in the absence of the party. 

(b) I'xccpt as provided under subsection (e) of 
this section, hearings under this Article shall be 
conducted by a majority of the agency. An 
agency shall designate one or more of its mem- 
bers to preside at the hearing. If a party files in 
good faith a timely and sufficient affidavit of the 
personal bias or other reason for disqualification 
of any member of the agency, the agency shall 
determine the matter as a part of the record in the 
case, and its determination shall be subject to 
judicial review at the conclusion of the proceed- 
ing. If a presiding officer is disqualified or it is 
impracticable for him to continue the hearing, 
another presiding officer shall be assigned to 
continue with the case, except that if assignment 
of a new presiding officer will cause substantial 
prejudice to any party, a new hearing shall be 
held or the case dismissed without prejudice. 

(c) The presiding officer may: 

(1) Administer oaths and affirmations; 

(2) Sign and issue subpoenas in the name of 
the agency, requiring attendance and giving 
of testimony by witnesses and the pro- 
duction of books, papers, and other docu- 
mentary evidence; 

(3) Provide for the taking of testimony by 
deposition; 

(4) Regulate the course of the hearings, set the 
time and place for continued hearings, and 
fix the time for filing of briefs and other 
documents; 

(5) Direct the parties to appear and confer to 
consider simplification of the issues by con- 
sent of the parties; and 

(6) Apply to any judge of the superior court 
resident in the district or presiding at a term 
of court in the county where a hearing is 
pending for an order to show cause why any 
person should not be held in contempt of 
the agency and its processes, and the court 
shall have the power to impose punishment 
as for contempt for acts which would con- 
stitute direct or indirect contempt if the acts 



occurred in an action pending in superior 
court. 

(d) Unless required for dispositon of an ex 
parte matter authorized by law, a member of an 
agency assigned to make a decision or to make 
findings of fact and conclusions of law in a con- 
tested case under this Article shall not commu- 
nicate, directly or indirectly, in connection with 
any issue of fact or question of law, with any 
person or party or his representative, except on 
notice and opportunity for all parties to partic- 
ipate. This prohibition begins at the time of the 
notice of hearing. An agency member may 
communicate with other members of the agency 
and may have the aid and advice of the agency 
staff other than the staff which has been or is 
engaged in investigating or prosecuting functions 
in connection with the case under consideration 
or a factually-related case. This section does not 
apply to an agency employee or party represen- 
tative with professional training in accounting, 
actuarial science, economics or financial analysis 
insofar as the case involves financial practices or 
conditions. 

(e) When a majority of an agency is unable or 
elects not to hear a contested case, the agency 
shall apply to the Director of the Office of Ad- 
ministrative Hearings for the designation of an 
administrative law judge to preside at the hearing 
of a contested case under this Article. L'pon re- 
ceipt of the application, the Director shall, with- 
out undue delay, assign an administrative law 
judge to hear the case. 

The provisions of this Article, rather than the 
provisions of Article 3, shall govern a contested 
case in which the agency requests an administra- 
tive law judge from the Office of Administrative 
Hearings. 

The administrative law judge assigned to hear a 
contested case under this Article shall sit in place 
of the agency and shall have the authority of the 
presiding officer in a contested case under this 
Article. The administrative law judge shall make 
a proposal for decision, which shall contain pro- 
posed findings of fact and proposed conclusions 
of law. 

An administrative law judge shall stay any con- 
tested case under this Article on motion of an 
agency which is a party to the contested case, if 
the agency shows by supporting affidavits that it 
is engaged in other litigation or administrative 
proceedings, by whatever name called, with or 
before a federal agency, and this other litigation 
or administrative proceedings will determine the 
position, in whole or in part, of the agency in the 
contested case. At the conclusion of the other 
litigation or administrative proceedings, the con- 
tested case shall proceed and be determined as 
expeditiously as possible. 



376 



NORTH CAROLINA REGISTER 



The agency may make its final decision only 
after the administrative law judge's proposal for 
decision is served on the parties, and an oppor- 
tunity is given to each party to file exceptions and 
proposed findings of fact and to present oral and 
written arguments to the agency. 

§ 150B-41. Evidence; stipulations; official 

notice. -- (a) In all contested cases, irrelevant, 
immaterial, and unduly repetitious evidence shall 
be excluded. Except as otherwise provided, the 
rules of evidence as applied in the trial division 
of the General Court of Justice shall be followed; 
but, when evidence is not reasonably available 
under such rules to show relevant facts, they may 
be shown by the most reliable and substantial 
evidence available. It shall not be necessary for 
a party or his attorney to object to evidence at 
the hearing in order to preserve the right to ob- 
ject to its consideration by the agency in reaching 
its decision, or by the court of judicial review. 

(b) Evidence in a contested case, including re- 
cords and documents shall be offered and made 
a part of the record. Other factual information 
or evidence shall not be considered in determi- 
nation of the case, except as permitted under 
G.S. 150B-30. Documentary evidence may be 
received in the form of a copy or excerpt or may 
be incorporated by reference, if the materials so 
incorporated are available for examination by the 
parties. Upon timely request, a party shall be 
given an opportunity to compare the copy with 
the original if available. 

(c) The parties in a contested case under this 
Article by a stipulation in writing filed with the 
agency may agree upon any fact involved in the 
controversy, which stipulation shall be used as 
evidence at the hearing and be binding on the 
parties thereto. Parties should agree upon facts 
when practicable. Except as otherwise provided 
by law, disposition may be made of a contested 
case by stipulation, agreed settlement, consent 
order, waiver, default, or other method agreed 
upon by the parties. 

(d) Official notice may be taken of all facts of 
which judicial notice may be taken and of other 
facts within the specialized knowledge of the 
agency. The noticed fact and its source shall be 
stated and made known to affected parties at the 
earliest practicable time, and any party shall on 
timely request be afforded an opportunity to dis- 
pute the noticed fact through submission of evi- 
dence and argument. An agency may use its 
experience, technical competence, and specialized 
knowledge in the evaluation of evidence pre- 
sented to it. 

§ 150B-42. Final agency decision; official 

record. -- (a) After compliance with the pro- 
visions of G.S. 150B-40(e), if applicable, and re- 
view of the official record, as defined in 



subsection (b) of this section, an agency shall 
make a written final decision or order in a con- 
tested case. The decision or order shall include 
findings of fact and conclusions of law. Findings 
of fact shall be based exclusively on the evidence 
and on matters officially noticed, bindings of 
fact, if set forth in statutory language, shall be 
accompanied by a concise and explicit statement 
of the underlying facts supporting them. A de- 
cision or order shall not be made except upon 
consideration of the record as a whole or such 
portion thereof as may be cited by any party to 
the proceeding and shall be supported by sub- 
stantial evidence admissible under G.S. 150B-41. 
A copy of the decision or order shall be served 
upon each party personally or by certified mail 
addressed to the party at the latest address given 
by the party to the agency and a copy shall be 
furnished to his attorney of record. 

(b) An agency shall prepare an official record 
of a hearing that shall include: 

(1) Notices, pleadings, motions, and interme- 
diate rulings; 

(2) Questions and offers of proof, objections, 
and rulings thereon; 

(3) Evidence presented; 

(4) Matters officially noticed, except matters 
so obvious that a statement of them would 
serve no useful purpose; 

(5) Proposed findings and exceptions; and 

(6) Any decision, opinion, order, or report by 
the officer presiding at the hearing and by 
the agency. 

(c) Proceedings at which oral evidence is pre- 
sented shall be recorded, but need not be tran- 
scribed unless requested by a party. Each party 
shall bear the cost of the transcript or part thereof 
or copy of said transcript or part thereof which 
said party requests. 

Article 4. 
Judicial Review. 

§ 150B-43. Right to judicial review. —Any 
person who is aggrieved" by the final decision in 
a contested case, and who has exhausted all ad- 
ministrative remedies made available to him by 
statute or agency rule, is entitled to judicial re- 
view of the decision under this Article, unless 
adequate procedure for judicial review is pro- 
vided by another statute, in which case the review 
shall be under such other statute. Nothing in this 
Chapter shall prevent any person from invoking 
any judicial remedy available to him under the 
law to test the validity of any administrative 
action not made reviewable under this Article. 

§ 150B-44. Right to judicial intervention 

when decision unreasonably delayed. -- Unrea- 
sonable delay on the part of any agency or ad- 
ministrative law judge in taking any required 
action shall be justification for any person whose 



NORTH CAROLINA REGISTER 



177 



rights, duties, or privileges are adversely affected 
by such delay to seek a court order compelling 
action by the agency or administrative law judge. 
I'xcept for an agency that is a board or commis- 
sion, an agency's failure to make a final decision 
within 60 days of the date on which all ex- 
ceptions and arguments are filed under G.S. 
150B-36(a) with the agency constitutes unrea- 
sonable delay. A board or commission's failure 
to make a final decision within the later of the 
60 days allowed other agencies or 60 days after 
the board's or commission's next regularly 
scheduled meeting constitutes an unreasonable 
delay. 

§ 150B-45. Procedure for seeking review: 

waiver. -- To obtain judiciafreview of a final 
decision under this Article, the party seeking re- 
view must file a petition in the Superior Court 
of Wake County or in the superior court of the 
counts' where the person resides. 

The person seeking review must file the petition 
within 30 days after the person is served with a 
written copy of the decision. A person who fails 
to file a petition within the required time waives 
the right to judicial review under this Article. 
For good cause shown, however, the superior 
court may accept an untimely petition. 

§ 150B-46 Contents of petition; copies 

served on all parties; intervention. - The peti- 
tion shall explicitly state what exceptions are 
taken to the decision or procedure and what relief 
the petitioner seeks. Within 10 days after the 
petition is filed with the court, the party seeking 
the review shall serve copies of the petition by 
personal service or by certified mail upon all who 
were parties of record to the administrative pro- 
ceedings. Names and addresses of such parties 
shall be furnished to the petitioner by the agency 
upon request. Any party to the administrative 
proceeding may become a party to the review 
proceedings by notifying the court within 10 days 
after receipt of the copy of the petition. 

Any person aggrieved may petition to become 
a partv bv filing a motion to intervene as pro- 
vided in G.S. 1A-1, Rule 24. 

§ 150B-47. Records filed with clerk of supe- 
rior court: contents of records: costs. -- Within 
30 days after receipt of the copy of the petition 
for review, or within such additional time as the 
court may allow, the agency that made the final 
decision in the contested case shall transmit to 
the reviewing court the original or a certified 
copy of the official record in the contested case 
under review together with: (i) any exceptions, 
proposed findings of fact, or written arguments 
submitted to the agency in accordance with G.S. 
150B-36(a); and (ii) the agency's final decision 
or order. With the permission of the court, the 
record may be shortened by stipulation of all 



parties to the review proceedings. Any party 
unreasonably refusing to stipulate to limit the 
record may be taxed by the court for such addi- 
tional costs as may be occasioned by the refusal. 
The court may require or permit subsequent 
corrections or additions to the record when 
deemed desirable. 

§ 150B-48. Stay of decision. -- At any time 
before or during the review proceeding, the per- 
son aggrieved may apply to the reviewing court 
for an order staying the operation of the admin- 
istrative decision pending the outcome of the re- 
view. The court may grant or deny the stay in 
its discretion upon such terms as it deems proper 
and subject to the provisions of G.S. 1A-1, Rule 
65. 

§ 150B-49. New evidence. -- An aggrieved 
person who files a petition in the superior court 
may apply to the court to present additional evi- 
dence. If the court is satisfied that the evidence 
is material to the issues, is not merely cumulative, 
and could not reasonably have been presented at 
the administrative hearing, the court may remand 
the case so that additional evidence can be taken. 
If an administrative law judge did not make a 
recommended decision in the case, the court shall 
remand the case to the agency that conducted the 
administrative hearing. After hearing the evi- 
dence, the agency may affirm or modify its pre- 
vious findings of fact and final decision. If an 
administrative law judge made a recommended 
decision in the case, the court shall remand the 
case to the administrative law judge. After hear- 
ing the evidence, the administrative law judge 
may affirm or modify his previous findings of fact 
and recommended decision. The administrative 
law judge shall forward a copy of his decision to 
the agency that made the final decision, which in 
turn may affirm or modify its previous findings 
of fact and final decision. The additional evi- 
dence and any affirmation or modification of a 
recommended decision or final decision shall be 
made part of the official record. 



150B-50. Review bv su 



pe 



3r court without 



jury. -- The review by a superior court of agency 



decisions under this Chapter shall be conducted 
by the court without a jury. 
§ I50B-51. Scope of review . —(a) Initial 
Determination in Certain Cases. In reviewing a 
final decision in a contested case in which an ad- 
ministrative law judge made a recommended de- 
cision, the court shall make two initial 
determinations. First, the court shall determine 
whether the agency heard new evidence after re- 
ceiving the recommended decision. If the court 
determines that the agency heard new evidence, 
the court shall reverse the decision or remand the 
case to the agency to enter a decision in accord- 
ance with the evidence in the official record. 



378 



NORTH CAROLINA REGISTER 



Second, if the agency did not adopt the recom- 
mended decision, the court shall determine 
whether the agency's decision states the specific 
reasons why the agency did not adopt the re- 
commended decision. If the court determines 
that the agency did not state specific reasons why 
it did not adopt a recommended decision, the 
court shall reverse the decision or remand the 
case to the agency to enter the specific reasons. 

(b) Standard of Review. After making the de- 
terminations, if any, required by subsection (a), 
the court reviewing a final decision may affirm 
the decision of the agency or remand the case for 
further proceedings. It may also reverse or 
modify the agency's decision if the substantial 
rights of the petitioners may have been preju- 
diced because the agency's findings, inferences, 
conclusions, or decisions are: 

(1) In violation of constitutional provisions; 

(2) In excess of the statutory authority or ju- 
risdiction of the agency; 

(3) Made upon unlawful procedure; 

(4) Affected by other error of law; 

(5) Unsupported by substantial evidence ad- 
missible under G.S. 150B-29(a), 150B-30, 
or 150B-31 in view of the entire record as 
submitted; or 

(6) Arbitrary or capricious. 

§ 150B-52. Appeal; stay of court's decision. 
-- A party to a review proceeding in a superior 
court may appeal to the appellate division from 
the final judgment of the superior court as pro- 
vided in G.S. 7A-27. Pending the outcome of 
an appeal, an appealing party may apply to the 
court that issued the judgment under appeal for 
a stay of that judgment or a stay of the adminis- 
trative decision that is the subject of the appeal, 
as appropriate. 

Article 5. 
Publication of Administrative Rules. 

§ 150B-58. Short title. -- This Article may 
be cited as "The Registration of State Adminis- 
trative Rules Act". 

§ 150B-59. Piling of rules and executive or- 
ders. -- (a) Rules adopted by an agency and 
executive orders of the Governor shall be filed 
with the Director of the Office of Administrative 
Hearings no sooner than 90 days before their ef- 
fective date. No rule, except temporary' rules 
adopted under the provisions of G.S. 150B-13 
or rules approved under G.S. 143B-30.2(e) or 
reviewed and objected to under (f), shall become 
effective earlier than the first day of the second 
calendar month after that filing. 

(b) The acceptance for filing of a rule by the 
Director, by his notation on its face, shall con- 
stitute prima facie evidence of compliance with 
this Article. 



(c) Rules adopted by an agency subject to the 
provisions of Article 2 of this Chapter in effect 
on January I, 1986, that conflict with or violate 
the provisions of G.S. 150B-9(c) are repealed. 
Rules adopted by an agency subject to the pro- 
visions of Article 2 of this Chapter in effect on 
September 1, 1986, that do not conflict with or 
violate the provisions of G.S. 150B-9(c) shall re- 
main in effect until June 30, 1988. These rules 
are repealed effective July 1, 1988, unless the 
Administrative Rules Review Commission de- 
termines that a rule complies with G.S. 
143B-30.2(a). Review of these rules shall be 
carried out in the manner prescribed in G.S. 
143B-30.2 except that a rule determined to be in 
compliance shall remain in effect. In the event 
of rules which the Commission determines do 
not comply with G.S. 143B-30.2, such rules may 
be revised or repealed by the agency without a 
rule-making hearing in accordance with G.S. 
1 SOB- 12(h). Revised rules shall be returned to 
the Commission. If the Commission approves 
the rules, the Commission shall notify the agency 
and file the rules with the Office of Administra- 
tive Hearings. Rules adopted on or after January' 
1, 1986, shall become effective as provided in this 
Chapter. 

§ 150B-60. Porm of rules; responsibilities of 
agencies; assistance to agencies. ■- (a) In order 
to be acceptable for Tiling, the rule must: 

(1) Cite the statute or other authority pursu- 
ant to which the rule is adopted; 

(2) Bear a certification by the agency of its 
adoption; 

(3) Cite any prior rule or rules of the agency 
or its predecessor in authority which it 
rescinds, amends, supersedes, or supple- 
ments; 

(4) Be in the physical form specified by the 
Director of the Office of Administrative 
Hearings; and 

(5) Bear a notation from the Administrative 
Rules Review Commission that it has re- 
viewed the rule in accordance with G.S. 
143B-30.2. 

(b) Pach agency shall designate one or more 
administrative procedure coordinators whose du- 
ties shall be to oversee all departmental functions 
required by this Chapter. The coordinator's du- 
ties shall include providing notice of public 
hearings; serving as liaison between the agency 
and the Office of Administrative Hearings, the 
Administrative Rules Review Commission and 
the public; and coordinating access to agency 
rules. 

(c) The Director of the Office of Administrative 
Hearings shall: 

(1) Maintain an agency rule-drafting section 
in the Office of Administrative Hearings to 



NORTH CAROLINA REGISTER 



379 



draft or aid in the drafting of rules or 
amendments to rules for any agency; and 
(2) Prepare and publish an agency rule- 
drafting guide which sets out the form and 
method for drafting rules and amendments 
to rules, and to which all rules shall comply. 
§ 15013-61. Authority to revise form, --(a) 
The Director of the Office 01 Administrative 
Hearings shall have the authority, following ac- 
ceptance of a rule for filing, to revise the form of 
the rule as follows: 

(1) To rearrange the order of rules, Chapters, 
Subchapters, Articles, sections, paragraphs, 
and other divisions or subdivisions; 

(2) To provide or revise titles or catchlines; 

(3) To reletter or renumber the rules and var- 
ious subdivisions in accordance with a uni- 
form system: 

(4) To rearrange definitions and lists; and 

(5) To make other changes in arrangement 
or in form that do not alter the substance 
of the rule and that are necessary or desirable 
for an accurate, clear, and orderly arrange- 
ment of the rules. 

Revision of form by the Director shall not alter 
the effective date of a rule, nor shall revision re- 
quire the agency to readopt or to refile the rule. 
No later than the close of the fifth working day 
after the filing of a rule by an agency, the Direc- 
tor shall return to the agency that filed the rule a 
copy of the rule in any revised form made by the 
Director, together with his certification of the 
date of the rule's filing. 

The rule so revised as to form shall be substi- 
tuted for and shall bear the date of the rule ori- 
ginally tiled, and shall be the official rule of the 
agency. 

(b) In determining the drafting form of rules 
the Director shall: 

( 1 ) Minimize duplication of statutory lan- 
guage; 

(2) Not permit incorporations into the rules 
by reference to publications or other docu- 
ments which are not conveniently available 
to the public; and 

(3) To the extent practicable, use plain lan- 
guage in rules and avoid technical language. 

§ 1 5013-62. Public inspection and notification 
of current and replaced rules, --(a) Immediately 
upon notation of a films as specified in G.S. 
150B-59(b), the Director of the Office of Ad- 
ministrative Hearings shall make the rule avail- 
able for public inspection during regular office 
hours. Superseded, amended, revised, and 
rescinded rules filed in accordance with the pro- 
visions of this Article shall remain available for 
public inspection. The current and the prior 
rules so filed shall be separately arranged in 



compliance with the provisions of G.S. 
150B-61(a). 

(b) The Director shall make copies of current 
and prior rules, filed in accordance with the pro- 
visions of this Article, available to the public at 
a cost to be determined by him. 

(c) Within 50 days of the acceptance by the 
Director of a rule for filing, the agency filing the 
rule: 

(1) Shall publish the rule as prescribed in any 
applicable statute; and 

(2) May distribute the rule in a manner se- 
lected by the agency as best calculated to 
give notice to persons likely to be affected 
by the rule. 

The rule so published or distributed shall con- 
tain the legend: "The form of this rule may be 
revised by the Director pursuant to the pro- 
visions of G.S. 150B-61." 

§ 150B-63. Publication of executive orders 
and rules; the North Carolina Register. -- (a) 
The Director of the Office of Administrative 
Hearings shall compile, index and publish exec- 
utive orders of the Governor and all rules filed 
and effective pursuant to the provisions of this 
Article. 

(b) As nearly as practicable the compilation 
shall, in classification, arrangement, numbering, 
and indexing, conform to the organization of the 
General Statutes. 

(c) If the Director determines that publication 
of any rule would be impracticable, he shall sub- 
stitute a summary with specific reference to the 
official rule on file in his office. 

(d) As soon as practicable after July 1, 1985, 
the Director shall publish, in print or other form, 
a compilation of all rules in force pursuant to the 
provisions of this Article. Cumulative supple- 
ments shall be published annually or more fre- 
quently in the discretion of the Director. 
Recompilations shall be made in the Director's 
discretion. 

(dl) The Director shall also publish at periodic 
intervals, but not less often than once each 
month, the North Carolina Register which shall 
contain information relating to agency, executive, 
legislative or judicial actions that are performed 
under the authority of, or are required by, or are 
issued to interpret, or that otherwise affect, this 
Chapter. The North Carolina Register shall also 
contain notices under G.S. 120- 165(a). 

(d2) In publishing proposed amendments to 
rules, the Director shall show the portion of the 
rule being amended as it is to the degree neces- 
sary to provide adequate notice of the nature of 
the proposed amendment, with changes shown 
by striking through portions to be deleted and 
underlining portions to be added. 



3S0 



SORTH CAROLISA REGISTER 



(c) Notwithstanding G.S. 147-50, reference 
copies of the compilation, supplements, and rec- 
ompilations of the rules, and the North Carolina 
Register shall be distributed by the Director as 
soon after publication as practicable, without 
charge, only to the following officials and de- 
partments: 

(1) One copy to each county of the State, 
which copy may be maintained for public 
inspection in the county in a place deter- 
mined by the county commissioners; one 
copy each to the clerk of the Supreme Court 
of North Carolina and the clerk of the North 
Carolina Court of Appeals; one copy each 
to the libraries of the Supreme Court of 
North Carolina and the North Carolina 
Court of Appeals; one copy to the Admin- 
istrative Office of the Courts; one copy to 
the office of the Governor; and five copies 
to the Legislative Services Commission for 
the use of the General Assembly; 

(2) Upon request, one copy to each State of- 
ficial and department to which copies of the 
appellate division reports are furnished un- 
der G.S. 7A-343.1; 

(3) Five copies to the Division of State Li- 
brary of the Department of Cultural Re- 
sources, pursuant to G.S. 147-50.1; and 

(4) Upon request, one copy of the North 
Carolina Register to each member of the 
General Assembly. 



(f) The Director shall make available to persons 
not listed in subsection (e) copies of the compi- 
lation, supplements, and recompilations of the 
rules and the North Carolina Register, and shall 
make available to all persons copies of other 
public documents filed in the Office of Adminis- 
trative Hearings. The Director shall set a fee to 
be charged for publications and documents made 
available under this subsection at an amount that 
covers publication, copying, and mailing costs. 
All monies received by the Office of Administra- 
tive Hearings pursuant to this subsection shall 
be deposited in the State treasury in a special 
funds account to be held in trust for the Office 
of Administrative Hearings to defray the expense 
of future recompilation, publication, and distrib- 
ution of such documents. All monies involved 
shall be subject to audit by the State Auditor. 

(g) Notwithstanding any other provision of 
law, the Employment Security Commission 
shall, within 15 days of adoption, file all rules 
adopted by it with the Director for public in- 
spection and publication purposes only. The 
Director shall compile, make available for in- 
spection, and publish the rules filed under this 
subsection in the same manner as is provided for 
other rules. 

§ 150B-64. Judicial and official notice. -- 

Judicial or official notice shall be taken of any 
rule effective under this Article. 



NORTH CAROLINA REGISTER 



381 



GENERAL STATUTES OF NORTH CAROLINA 

CHAPTER 7A, SUBCHAPTER XII, ARTICLE 60 

Office of Administrative Hearings. 

As Amended Effective 9-1-87 



7A-750. Creation; status: 



purp 



ose. 



There is created an Office ot Administrative 
Hearings. The Office of Administrative Hearings 
is an independent, quasi-judicial agency under 
Article III, Sec. 1 1 of the Constitution and, in 
accordance with Article IV, Sec. 3 of the Consti- 
tution, has such judicial powers as may be rea- 
sonably necessary as an incident to the 
accomplishment of the purposes for which it is 
created. The Office of Administrative Hearings 
is established to provide a source of independent 
hearing officers to preside in administrative cases 
and thereby prevent the commingling of legisla- 
tive, executive, and judicial functions in the ad- 
ministrative process. It shall also maintain 
dockets and records of contested cases and shall 
codify and publish all administrative rules. 

§ 7A-751. Director: powers and duties. -- 
The head of the Office ot Administrative 
I learings is the Director. He shall serve as the 
chief administrative law judge of the Office of 
Administrative Hearings and shall have the pow- 
ers and duties conferred on him by this Chapter 
and the Constitution and laws of this State. 

The Office of Administrative Hearings is desig- 
nated the official deferral agency under Section 
706 of the Civil Rights Act of 1964, as amended, 
for all charges filed on a timely basis with the 
Equal Employment Opportunity Commission 
by any State or local government employee cov- 
ered under Chapter 126 of the General Statutes. 
The Office of Administrative Hearings may con- 
tract with the Equal Employment Opportunity 
Commission to become a 706 deferral agency and 
may conduct necessary investigations and in- 
formal hearings or fact-finding proceedings. The 
Office of Administrative Hearings may prepare 
investigation reports with the findings, conclu- 
sions, and determinations of probable cause that 
a 706 deferral agency is required to make and 
may take other actions required for it to function 
as a 706 deferral agency for State and local em- 
ployees covered under Chapter 126 of the Gen- 
eral Statutes. Proceedings conducted by the 
Office of Administrative Hearings as a 706 defer- 
ral agencv are not contested cases as defined in 
G.S. 150B-2(2). 



§ 7A-752. Director; appointments; vacancy. 



The Director of the Office ot Administrative 
Hearings shall be appointed by the Chief Justice 
for a term of office of four years. The first Di- 
rector shall be appointed as soon as practicable 
for a term to begin on the day of his appointment 
and to end on June 30, 1989. Successors to the 
first Director shall be appointed for a term to 
begin on July 1 of the year the preceding term 
ends and to end on June 30 four years later. A 
Director may continue to serve beyond his term 
until his successor is duly appointed and swom, 
but any holdover shall not affect the expiration 
date of the succeeding term. 

If the Director is absent or unable to serve 
temporarily for any reason, the senior adminis- 
trative law judge present may perform the duties 
of Director. Seniority among administrate law 
judges shall be determined by length of service 
as administrative law judge, date of admission to 
practice law in the General Court of Justice, and 
age, in that order. 

§ 7A-753. Additional Administrative Law 



Judges; appointment: specialization. -- The Di- 
rector shall appoint additional administrative law 
judges to serve in the Office of Administrative 
Hearings in such numbers as the General As- 
sembly provides. 

The Director may designate certain administra- 
tive law judges as having the experience and ex- 
pertise to preside at specific types of contested 
cases and assign only these designated adminis- 
trative law judges to preside at those cases. 

§ 7A-754. Qualifications; standards of con- 
duct: removal. -- Only persons duly authorized 
to practice law in the General Court of Justice 
shall be eligible for appointment as the Director 
and chief administrative law judge or as an ad- 
ministrative law judge in the Office of Adminis- 
trative Hearings. Neither the chief administrative 
law judge nor any administrative law judge may 
engage in the private practice of law as defined in 
G.S. 84-2.1 while in office; violation of this pro- 
vision shall be grounds for removal. Each ad- 
ministrative law judge shall take the oaths 
required by Chapter 1 1 of the General Statutes. 
An administrative law judge may be removed 



3S2 



NORTH CAROLINA REGISTER 



from office by the Director of the Office of Ad- 
ministrative Hearings for just cause, as that term 
is used in G.S. 126-35. 

§ 7A-755. Expenses reimbursed. -- The 

Director of the Office of Administrative Hearings 
and all administrative law judges shall be reim- 
bursed for travel and subsistence expenses at the 
rates allowed to State officers and employees by 
G.S. 138-6(a). 

§ 7A-756. Power to administer oaths and 
issue subpoenas. - The chief administrative law 
judge and all administrative law judges in the 
Office of Administrative Hearings may, in con- 
nection with any pending or potential contested 
case under Chapter 150B: 

( 1 ) Administer oaths and affirmations; 

(2) Sign and issue subpoenas in the name of 
the Office of Administrative Hearings re- 
quiring attendance and giving of testimony 
by witnesses and the production of books, 
papers, and other documentary evidence; 
and 

(3) Apply to the General Court of Justice, 
Superior Court Division, for any order nec- 
essary to enforce the powers conferred in 
this Article. 

§ 7A-757. Temporary administrative law 

judges; appointments; powers and standards; 
fees. -- When regularly appointed administrative 
law judges are unavailable, the Director of the 
Office of Administrative Hearings may contract 



with qualified individuals to serve as administra- 
tive law judges for specific assignments. A tem- 
porary administrative law judge shall have the 
same powers and adhere to the same standards 
as a regular administrative law judge in the con- 
duct of a hearing. A temporary administrative 
law judge shall not be considered a State em- 
ployee by virtue of this assignment, and shall be 
remunerated for his service at a rate not to exceed 
three hundred dollars ($300.00) per day and shall 
be reimbursed for travel and subsistence expenses 
at the rate allowed to State officers and employ- 
ees by G.S. 138-6(a). The Director may also 
designate a full-time State employee to serve as 
a temporary administrative law judge with the 
consent of the employee and his supervisor; 
however, the employee is not entitled to any ad- 
ditional pay for this service. 

§ 7A-758. Availability of administrative law 
judge to exempt agencies. -- The Director of the 
Office of Administrative Hearings may, upon re- 
quest of the head of the agency, provide an ad- 
ministrative law judge to preside at hearings of 
public bodies not otherwise authorized or re- 
quired by statute to utilize an administrative law 
judge from the Office of Administrative Hearings 
including, but not limited to, State agencies ex- 
empt from the provisions of Chapter 150B, mu- 
nicipal corporations or other subdivisions of the 
State, and agencies of such subdivisions. 



NORTH CAROLINA REGISTER 



383 



EXECUTIVE 
ORDER 

EXECUTIVE ORDER NUMBER 54 

COORDINATED PLANNING I OR EMPLOYMENT 
AND TRAINING PROGRAMS 



disparate planning period constitute a major 
barrier to effective coordination; 

5. The Committee and the Council have re- 
commended that the period of January through 
March of each calendar year be designated as a 
uniform planning period for all employment and 
training activities in the State. 



As Governor of North Carolina, it has been 
made to appear to me upon satisfactory infor- 
mation furnished to me as follows: 

1. The North Carolina Job Training Coordi- 
nating Council, hereafter referred to as "the 
Council", was established according to the re- 
quirements of the Job Training Partnership Act 
to oversee the State's employment and training 
programs and to advise the Governor on the 
State's employment and training policies; 

2. The Governor has established, in accordance 
with requirements outlined in the Job Training 
Partnership Act, criteria for coordinating pro- 
grams funded under JTPA with programs and 
services provided by State and local education 
and training agencies; 

3. The Council's Interagency Coordinating 
Committee, hereafter referred to as "the Com- 
mittee'', comprised of representatives from State 
agencies invoked in employment and training, 
has been studying ways to eliminate barriers to 
effective coordination of all programs related to 
job training; 

4. The Committee has identified varying plan- 
ning cycles and programs for involved agencies 
occurring throughout the calendar year and these 



NOW, THEREFORE, under and by the au- 
thority vested in me as Governor of the State of 
North Carolina, I do hereby order and direct as 
follows: 



Section 



The period of January through 



March of each calendar year is hereby designated 
as the uniform planning period for all employ- 
ment and training activities in the State. 

Section 2_ All State and local agencies, includ- 
ing service delivery areas involved in employment 
and training activities, including those designated 
in the Coordination Criteria, shall accomplish 
their planning, both independently and in concert 
with each other, during this period, except where 
such is prohibited by statute or regulation. 

Section 3. I commend the agencies for their 
efforts to provide coordinated employment and 
training related services in the most effective, 
wide-reaching and cost effective manner to the 
citizens of North Carolina. 

This Order shall be effective immediately. 

This the 25th day of August, 1987. 



384 



NORTH CAROLINA REGISTER 



VOTING RIGHTS ACT FINAL DECISION LETTERS 



[G.S. I2Q-30.9H, effective July 16, 1986, requires that all letters and other documents issued by the 
Attorney General of the United Stales in which a final decision is made concerning a "change af- 
fecting voting" under Section 5 of the Voting Rights Act of 1965 be published in the Xorlh Carolina 
Register. / 



WBR:MAP:KAC:gmh 

DJ 166-012-3 

R9240 

SI 390 

S2756-2780 

S4431 



U.S. Department of Justice 
Civil Rights Division 
Washington, D.C. 20530 



Voting Section 
P.O. Box 66128 
Washington, D.C. 20035-6128 



August 7, 1987 



Jesse L. Warren, Esq. 
City Attorney 
Drawer W-2 
Greensboro, North Carolina 



27402 



Dear Mr. Warren: 

This refers to twenty-eight annexations (Ordinance Nos. 64-47, 65-87, 66-6, 66-29, 66-50, 
66-108, 67-9, 67-10, 68- 13,' 68-1 8, 68-75, 68-96, 68-1 17, 69-9, 69-10, 69-1 1, 69-12, 69-13, 69-14, 69-15, 
69-16, 69-17, 69-45, 69-82, 69-83, 69-1 1 1, 87-32, and 87-91) to the City of Greensboro in Guildford 
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting 
Risjhts Act of 1965, as amended, 42 U.S.C. 1973c. We received your submissions on June 10 and 
July 13, 1987. 

The Attorney General will make no determination with regard to the annexation effected by 
Ordinance No. 64-47, since this change was made prior to November 1, 1964, and is not subject to 
the preclearance requirements of Section 5. See Sections 51.4 and 51.35 of the Procedures for the 
Administration of Section 5 (52 Fed. Reg. 491 and 495 (1987)]. 

The Attorney General does not interpose any objections to the remaining annexations.* 
However, we feel a responsibility to point out that Section 5 of the Voting Rights Act expressly 
provides that the failure of the Attorney General to object does not bar any subsequent judicial 
action to enjoin the enforcement of such changes. See also Section 51.41 [52 Fed. Reg. 496 (1987)]. 

Sincerely, 

Wm. Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division 

By: 



*See attached. 



Gerald W. Jones 
Chief, Voting Section 



NORTH CAROLINA REGISTER 



3S5 



* 1. Ordinance 87-32 - Property located east of Stanley Road (10.397 Acres) Adopted March 16, 
1987 
2. Ordinance 87-91 - Property at western terminus of Green Meadow Drive (10.92 Acres) 

Adopted July 6, 1987 



386 NOR TH CAROLINA REGIS TER 



U.S. Department of Justiee 
Civil Rights Division 
Washington, D.C. 20530 

WBR:MAP:CCS:jmc 

DJ 166-012-3 Voting Section 

S43 14-43 15 P.O. Box 66128 

S4872-4873 Washington, D.C. 20035-612$ 

August 19, 1987 



Michael Crowell, Fsq. 
Tharrington, Smith & Hargrove 
P. O. Box 1151 
Raleigh, North Carolina 27602 

Dear Mr. Crowell: 

This refers to Chapter 549, S.B. 348 (1987), insofar as it provides for the change in the 
method of electing town commissioners from at large to two double-member districts and 
one at-large position, the districting plan, the implementation schedule, and the one time 
extension of the qualifying period for the 1987 election for the Town of Enfield in Halifax 
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the 
Voting Rights Act of 1965, as amended, 42 U.S.C. 1973c. We received your submission on 
July 21, 1987. In accordance with your request, expedited consideration has been given this 
submission pursuant to Section 51.34 of the Procedures for the Administration of Section 5 
[52 Fed. Reg. 495(1987)]. 

The Attorney General does not interpose any objections to the changes in question. 
However, we feel a responsibility to point out that Section 5 of the Voting Rights Act ex- 
pressly provides that the failure of the Attorney General to object does not bar any subse- 
quent judicial action to enjoin the enforcement of such changes. In addition, as authorized 
by Section 5, the Attorney General reserves the right to reexamine this submission if addi- 
tional information that would otherwise require an objection comes to his attention during 
the remainder of the sixty-day review period. See also Sections 51.41 and 51.43 [52 Fed. 
Reg. 496(1987)]. 

Sincerely, 

Wm. Bradford Reynolds 
Assistant Attorney General 
Civil Rights Division 



By: 



Gerald W. Jones 

Chief, Voting Section 



NORTH CAROLINA REGISTER 3S7 



PROPOSED RULES 



TITLE 1 - DEPARTMENT OF 
ADMINISTRATION 



SECTION .0200 - INITIATION OF 
ADMINISTRATIVE HEARING 



N 



olice is hereby given in accordance with 
G.S. 1 5011- 1 2 that The Department of Admin- 
istration intends to repeal regulations cited as I 
NCAC6E .0101 - .0/07; .0201; .0303 - .0305; 
.0308; .0401 - .0402; .0501. 



T„ 



he proposed effective date of this action is 
January I, 1988. 



T„ 



he public hearing will be conducted at 10:00 
a.m. on October 15, 1987 at Williamsburg 
Conference Room. Administration Building. 
First Floor, 116 West Jones Street. Raleigh. 
North Carolina 27603-8003. 



C 



omment Procedures: Any interested person 
may present his or her views and comments ei- 
ther in writing to or at the hearing or orally at 
the hearing. Any person may request informa- 
tion, permission to be heard or copies of the 
proposed regulations by writing or calling Fran 
Tom/in. Department of Administration. 116 
West Jones Street. Raleigh, North Carolina 
27603-8003, (919) "33-7232. 

CHAPTER 6 - STATE PROPERTY AND 
CONSTRUCTION 

SUBCHAPTER 6F - BOARD OF STATE 
CONTRACT APPEALS 

SECTION .0100 - GENERAL 
INFORMATION 

.0101 NAME OF BOARD AND ADDRESS 
(REPEALED) 
PURPOSE (REPEALED) 
DEFINITIONS (REPEALED) 
AVAILABILITY OF 
ADMINISTRATIVE HEARING 
(REPEALED) 

SEPARATION OF FUNCTIONS 
(REPEALED) 
LOCATION OF HEARING 
(REPEALED) 

LEGAL REPRESENTATION 
BEFORE THE BOARD 
(REPEALED) 



.111112 
.0103 

.0104 



.0105 



.0106 



.0107 



.0201 NOTICE OF APPEAL 

PROCEDURE (REPEALED) 

History Note: Statutory Authority G.S. 
143-135.10; 150B-II; I50B-23; 150B-25. 

SECTION .0300 RULES OF CIVIL 
PROCEDURE AND EVIDENCE 

.0303 RULES OF CIVIL PROCEDURE 
AND EVIDENCE (REPEALED) 

.0304 PREHEARING ORDER AND 
CONFERENCE (REPEALED) 

.0305 DISCOVERY (REPEALED) 

.0308 NOTICE OF PROPOSED 

HEARING DATE (REPEALED) 

History Note: Statutory Authority G.S. 
143-/35.10; 150B-/1; 150B-23; 150B-25. 

SEC HON .0400 - PROCEDURES FOR 
CONDUCTING THE HEARING 

.0401 CONDUCT OF THE HEARING 

(REPEALED) 
.0402 CONTINUANCES: TIME 

EXTENSIONS AND FAILURE TO 

APPEAR (REPEALED) 

Statutory Authority G.S. 143-135.10; 150B-11; 
150B-23; 150B-25. 

SECTION .0500 - POST-HEARING 
PROCEDURE 

.0501 FINAL DECISION (REPEALED) 

Statutory Authority G.S. 143-135.10; 150B-11; 
150B-23; I50B-25. 



N 



olice is hereby given in accordance with 
G.S. 150B-12 that The Department of Admin- 
istration intends to repeal regulations cited as I 
NCAC30B .0001; .0005; .0007. 



T, 



he proposed effective dale of this action is 
January I. 1988. 



Th 



History Note: Statutory Authority G.S. 
143-/35.10; I50B-II; I50B-23; 150B-25. 



he public hearing will be conducted at 10:00 
a.m. on October 20, 1987 at State Construction 
Office, Room 403. Legislative Office Building. 



388 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



a 



- ommcnt Procedures: Any interested person 
may present his or her views and comments in 
writing prior to or at a hearing or orally at the 
hearing. Any person may request information, 
permission to be heard or copies of the proposed 
regulations by writing or calling Fran Tomlin. 
Department of Administration, 116 West Jones 
Street, Raleigh, North Carolina 27603-8003, 
Telephone: 9/9-733-7232. 

CHAPTER 30 - STATE CONSTRUCTION 

SUBCHAPTER 301$ - NORTH CAROLINA 
CAPITAL BUILDING AUTHORITY 

.0001 POWERS AND DUTIES 
(RFPEALLD) 

Statutory Authority G.S. 129-42.2. 

.0005 SELECTION OF ARCHITECTS: 
ENGINEERS AND OTHER 
CONSULTANTS (REPEALED) 

Statutory Authority G.S. 129-42. 

.0007 ADVERTISEMENT (REPEALED) 

Statutory Authority G.S. 129-42. 



No 



otice is hereby given in accordance with 
G.S. I SOB- 1 2 that The Department- of Admin- 
istration intends to adopt regulations cited as 1 
NCAC 301) .0101-.0103; .0201-.0202; and 
.030/ -.0306. 



T„ 



he proposed effective date of this action is 
January I, I9S8. 



T„ 



he public hearing will be conducted at 10:00 
a.m. on October 20, 1987 at State Construction 
Office, Room 403, Legislative Office Building. 



c 



■omment Procedures: Any interested person 
may present his or her views and comments in 
writing prior to or at the hearing or orally at the 
hearing. Any person may request information, 
permission to be heard or copies of the proposed 
regulations by writing or calling Fran Tomlin, 
Department of Administration. 116 West Jones 
Street, Raleigh, North Carolina 27603-8003. 
telephone (919) 733-7232. 



SUBCHAPTER 301) STATE BUILDING 

COMMISSION DESIGNER SELECTION 

POLICY 

SECTION .0100- GENERAL 
PROVISIONS 

.0101 AUTHORITY 

The State Building Commission, hereinafter 
referred to as SBC, is a statutory body, em- 
powered by Publie Law to perform a multi- 
plicity of duties with regard to the State's 
Capital Facilities Development and Manage- 
ment Program. In the specific area of state 
capital improvement project design selection, 
the SBC is empowered to adopt rules estab- 
lishing standard procedures and criteria to as- 
sure that the designer selected for each state 
capital improvement project has the qualifica- 
tions and experience necessary for that capital 
improvement project. The SBC is responsible 
and accountable for the final selection of the 
designer. The single exception is that The 
University of North Carolina shall be respon- 
sible and accountable for the final selection of 
designers for capital projects in which the uni- 
versity is the funded agency. 



Statutory 
143-135.26. 



Authority G.S. 143-135.25; 



.0102 POLICY 

It is the policy of the SBC to select designers 
for capital improvement projects as defined in 
G.S. 143-135.27, based on criteria contained 
herein and to make available to every designer, 
duly licensed to practice in North Carolina, the 
opportunity to be considered for providing 
professional services for those departments and 
agencies under its jurisdiction. The SBC con- 
siders that the selection of competent designers 
is vital to providing the State of North 
Carolina with best and most appropriate facil- 
ities consistent with authorized funds. These 
procedures are intended to provide a basis for 
the fair and uniform selection of designers. 
These procedures for defined projects are in- 
tended to be consistent with Chapter 102, 
House Bill 277. Projects not covered by this 
policv shall also be consistent with Chapter 
102, House Bill 277. 



Statutory 

143-135.26. 



Authority G.S. 143-135.25; 



.0103 DEFINITIONS 

(a) For purposes of this Subchapter, the fol- 
lowing definitions shall apply to the commis- 
sion: 






NO R TH CA R OLINA R EG IS TER 



389 



PROPOSED RULES 



(1) "Annual Service Agreement" means an 
open end agreement tor professional 
services with a designer, subject to the 
limitations of this policy, for the pro- 
vision of small miscellaneous and or 
urgent design services. 

(2) "Capital Projects Coordinator" means 
the individual authorized by each 
funded agency to coordinate all capital 
improvement projects and related mat- 
ters with the State Construction Office 
and to represent that agency on all 
matters presented to the SBC. The in- 
dividual so designated for purposes of 
these Rules may have other titles within 
his agency but shall cam out the duties 
assigned herein to the Capital Projects 
Coordinator. Whenever the Capital 
Projects Coordinator is referenced 
herein, it shall be understood to include 
a designated assistant or representative. 

(3) "Designer" means any individual, firm, 
partnership, corporation, association or 
other legal entity permitted by law to 
practice architecture, engineering, land- 
scape architecture or surveying in the 
State of North Carolina. 

(4) "Contact person" means the person 
named in the public advertisement who 
shall be the Capital Projects Coordina- 
tor or his designee. 

(5) "Funded agency" means the depart- 
ment, agency, authority, or office that 
is named in the legislation appropriating 
funds for the design and or construction 
project. 

(6) "Major projects" means those capital 
improvement projects whose author- 
ized funding or estimated cost is greater 
than five hundred thousand dollars 
($500,000.00) or a planning study ac- 
tivity whose authorized funding is 
szreater than fifty thousand dollars 
($50,000.00). 

(7) "Minor projects" means those capital 
improvement projects whose author- 
ized funding or estimated cost is five 
hundred thousand dollars ( J5O0.0U0.00) 
or less or a planning or study activity 
whose authorized funding is fifty thou- 
sand dollars ($50,000.00)" or less. Mi- 
nor projects may also include a 
grouping of small non-specified or an- 
ticipated projects whose aggregate total 
falls within the minor project cost limi- 
tations. 

(X) "Professional services" means those 
services within the scope of the practice 
of architecture, engineering, landscape 



architecture or surveying as defined by 
the public laws of North Carolina. 
(9) "Using agency" means the sub-division 
of the funded agency for whose use the 
project is to be provided. If the funded 
agency is so subdivided for administra- 
tive control, the using agency would be 
a division, geographically self-contained 
facility, campus, or similar body, as de- 
termined by the administrative head of 
the funded agency. 



Statutory 
143-135.26. 



Authority (7.5. 143-135.25; 



SECTION .0200 - PROJECT 
INFORMATION 

.0201 PROJECT DESCRIPTION 

It shall be the responsibility of each Capital 
Projects Coordinator to provide the State 
Construction Office a written description of 
the professional services desired, the program 
or scope of work, schedule requirements, 
amount of authonzed funds and other appro- 
priate information for each project requiring 
professional services. This information should v 
be provided to the State Construction Office 
seven days prior to the publication dates of the 
first and fifteenth of each month for the North 
Carolina Purchase Directory. The Capital 
Projects Coordinator is responsible for prompt 
initiation of the designer selection process to 
enable the completion of designer selection 
with 60 days of the date of the above notifica- 
tion. 



Statutory 
143-135.26. 



Authority 



G.S. 



143-135.25; 



.0202 PUBLIC ANNOUNCEMENT 

Based upon project information furnished by 
a Capital Projects Coordinator, the State 
Construction Office shall publish an an- 
nouncement of the need for professional ser- 
vices, a designated contact person in the State 
Construction Office and the closing date in the 
North Carolina Purchase Director.'. Public 
announcement is required prior to designer se- 
lection except in the event of emergency. In 
the event of emergency, the procedure outlined 
in this policy will be followed. 

On projects, the closing date for being con- 
sidered for professional services shall not be 
less than ten days for minor projects and 15 
days for major projects nor more than 21 days 
from date of publication in the Purchase Di- 
rectory. 



390 



\ORTH CAROLINA REGISTER 



PROPOSED RULES 



A letter of interest for each project must be 
received by the contact person prior to a de- 
signer being considered for professional ser- 
vices. 

Statutory Authority G.S. 143-135.25; 
143-135.26. 

SECTION .0300 SELECTION OF 
DESIGNERS 

.0301 DESIGNER QUALIFICATIONS 

All designers desiring to provide professional 
services shall file with the State Construction 
Office a Federal Standard Form 254 by Janu- 
ary 1 of each year. Qualifications may be 
submitted any time during the year; but, dur- 
ing January of each year, all submissions older 
than 12 months may be destroyed. 

In response to a specific project announce- 
ment, the designer may submit a new or up- 
dated Standard Form 254 or other information 
requested by the State Construction Office. 
Designer qualifications must be on file or sub- 
mitted to the State Construction Office prior 
to being considered by the pre-sclection com- 
mittee. 



Statutory A uthority 
143-135.26. 



G.S. 143-135.25; 



.0302 PRE-SELECTION 

A prc-selection committee shall be estab- 
lished for all projects requiring professional 
service. On minor projects, the pre-selection 
committee shall consist of at least the Capital 
Projects Coordinator, a representative of the 
using agency and one representative from the 
State Construction Office. On major projects 
the prc-selection committee shall consist of at 
least the Capital Projects Coordinator, a rep- 
resentative of the using agency and two repre- 
sentatives from the State Construction Office. 
At least one member of all pre-selcction com- 
mittees shall be a licensed design professional. 
(1) General Procedure for All Projects: The 
Capital Projects Coordinator shall review 
with the using agency the requirements of 
the project. This step should normally 
take place prior to public advertisement in 
the Purchase Directory, because designers 
have a significant need to know in ad- 
vance the program intent of a project in 
order to demonstrate their qualifications 
for the project in their letter of interest. 
The Capital Projects Coordinator shall 
receive all letters of interest and other 
qualification information cither directly 
or from the designated contact person. 



After a pre-selection priority list is pre- 
pared, the list will remain confidential ex- 
cept to the Secretary of the SBC. If fewer 
than three letters of interest are received 
on major projects, the project will be re- 
advertised in the Purchase Director,'. If 
fewer than three letters of interest are re- 
ceived following the re-advertisement, the 
Capital Projects Coordinator may proceed 
with the selection process using the data 
received or may re-advertised again. 

(2) Special Procedures for Minor Projects: 
The Capital Projects Coordinator shall 
again review with the using agency the 
requirements of the project and the quali- 
fications of all firms expressing interest in 
a specific project. The Capital Projects 
Coordinator and a representative of the 
using agency shall meet with the repre- 
sentative from the State Construction Of- 
fice for the evaluation of each firm and 
development of a list of three firms in 
priority order to be presented to the SBC. 
The Capital Projects Coordinator may 
institute the interview procedures, under 
major projects, where special circum- 
stances dictate such need. The Capital 
Projects Coordinator shall submit to the 
Secretary of the SBC the list of three firms 
in priority order, including pre-selection 
information and written recommen- 
dations, to be presented to the SBC. The 
Capital Projects Coordinator shall state in 
the submission to the SBC that the es- 
tablished rules for public announcement 
and pre-selection have been followed or 
shall state full particulars if exceptions 
have been taken. 

(3) Special Procedures for Major Projects: 
The pre-selection committee shall review 
the requirements of a specific project and 
the qualification of all firms expressing 
interest in that project and shall select 
from that list not more than six nor less 
than three firms to be interviewed and 
evaluated. The pre-selection committee 
shall interview each of the selected firms, 
evaluate each firm interviewed, and rank 
in order three firms. The Capital Projects 
Coordinator shall state in his submission 
that the established rules for public an- 
nouncement and prc-selection have been 
followed or shall state full particulars if 
exceptions have been taken. 

(4) Special Procedures for Fmcrgcncy 
Projects: On occasion, emergency design 
services may be required for restoration 
or correction of a facility condition which 
by its nature poses a significant hazard to 



NORTH CAROLINA REGISTER 



391 



PROPOSED RULES 



persons or property, or an emergency ex- 
ists. Should this situation occur, in all 
likelihood there will not be sufficient time 
to follow the normal procedures described 
herein. The Capital Projects Coordinator 
on these rare occasions is authorized to 
declare an emergency, notify the State 
Construction Office and then obtain the 
services of a competent designer for con- 
sultation or design of the corrective 
action. In all cases, such uses of these 
emergency powers will involve a written 
description of the condition and rationale 
for employing this special authority signed 
by the head of the agency and presented 
to the SBC at its next normal meeting. 
Timeliness for obligation of funds or other 
non-hazardous or non-emergency situ- 
ations do not constitute sufficient grounds 
for invoking this special authority. 
(5) Annual Contract: A Funded Agency or 
a Using Agency may require the services 
of designer(s) for small miscellaneous 
projects on a routine basis. In such cases. 
designer(s) for annual contracts will be 
selected in accordance with the above 
procedures for minor projects. In addi- 
tion, no annual contract fee will exceed 
fifty thousand dollars ($50,000.00) in total 
volume and no single fee shall exceed ten 
thousand dollars ($10,000.00). 



Statutory 
143-135.26. 



Authority G.S. 143-135.25; 



Statutory 
143-135.26. 



A uthority 



G.S. 



143-135.25; 



.0303 SELECTING CRITERIA 

In selecting the three firms to be presented to 
the SBC, the pre-selection committee should 
take into consideration such factors as: 

( 1 ) Specialized or appropriate expertise in 
the type of project. 

(2) Past performance on similar projects. 

(3) Adequate staff and proposed design 
team for the project. 

(4) Current workload and State projects 
awarded. 

(5) Proposed design approach for the 
project including design team and con- 
sultants. 

(6) Recent experience with project costs and 
schedules. 

(7) Construction administration capabilities. 
(K) Proximity to and familiarity with the 

area where project is located. 
(9) Record of successfully completed 

projects without major legal or technical 

problems. 
(10) Other factors that may be appropriate 

for the project. 



.0304 DESIGNER SELECTION EOR 
LAC SYSTEM PROJECTS 

In selecting designers for its projects, the 
UNC system shall comply with the preceding 
policies and pre-selcction procedures, except 
that pre-selcction committees need not include 
a representative of the State Construction Of- 
fice. The UNC system shall establish its own 
procedures for final designer selection. These 
procedures shall correspond in form to those 
established below for other than UNC system 
projects and shall be filed with and approved 
bv the SBC. 



Statutory 
143-/35.26. 



Authority G.S. 143-/35.25; 



.0305 DESIGNER SELECTION FOR 
OTHER THAN UNC SYSTEM 
PROJECTS 

Upon receipt of a letter from the Capital 
Projects Coordinator listing three firms in pri- 
ority order along with recommendations and 
pre-selection information, as requested by the 
SBC, the Secretary of SBC, upon determi- 
nation that all information has been submitted, 
will place the request for consideration on the 
agenda for the next SBC meeting. 

The Capital Projects Coordinator shall make 
a report to the SBC outlining the procedures 
that were followed and justification for the 
priority list of three firms. Upon a determi- 
nation by the SBC that the standard proce- 
dures and criteria have been properlv followed, 
the SBC will: 

( 1 ) Select the firms in the priority order re- 
commended by the state or agency; or 

(2) Select the firms in a different priority or- 
der from that recommended by the funded 
agency and give justification for such se- 
lection; or 

(3) Request a new priority list and give jus- 
tification for such request. 

Statutory Authority G.S. 143-315.25; 
143-135.26. 

.0306 CONTRACT NEGOTIATION 

After the three have been notified of the se- 
lection action by The University of North 
Carolina or the SBC. a representative from the 
State Construction Office, the Capital Projects 
Coordinator, and a representative from the 
using agency will discuss with the selected de- 
signer appropriate information about the 



392 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



project, the scope of services to be provided 
and the state design/ review/construction proc- 
ess. 

The State Construction Office will request in 
writing a detailed fee proposal from the se- 
lected designer. The State Construction Office 
in coordination with the Capital Projects Co- 
ordinator and the using agency will attempt to 
negotiate a fair and equitable fee consistent 
with the project program and the professional 
services required for the specific project. In the 
event a fee cannot be agreed upon, the State 
Construction Office shall terminate the nego- 
tiations and shall repeat the notification and 
negotiation process with the next ranked firm 
on the selection list. In the event a fee cannot 
be agreed upon with the second-ranked de- 
signer, the process will be repeated with the 
third-ranked designer. If a fee still cannot be 
agreed to, the SBC shall review the history of 
negotiations and make appropriate determi- 
nations including program adjustments so as 
to lead to a negotiated contract with one of the 
original three firms selected, renegotiation with 
the firms shall be carried out in the original 
selection order, or calling for the Capital 
Projects Coordinator to submit another list of 
three firms in priority order to the SBC or to 
the UNC system. The negotiation process will 
continue until a fee has been determined that 
is agreed to by the State Construction Office, 
the using agency, and the designer. Annual 
contracts are subject to special management 
procedures described herein. Normally, the 
initial fee negotiation for this type of work will 
involve mutual agreement in unit costs for 
time, materials, and overhead; a final lump 
sum price for each discrete project will be ne- 
gotiated in advance as each project is ordered. 

Following execution of the contract, the State 
Construction Office will publish in the North 
Carolina Purchase Directory the list of three 
firms selected in priority order, the firm to be 
contracted with, and the fee negotiated. 



Statutory 
143-135.26. 



Authority 



G.S. 



143-135.25; 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 



N„ 



otice is hereby given in accordance with 
G.S. 15013-12 that the Structural Pest Control 
Committee intends to repeal regulations cited 
as 2 SCAC 34 .0503 and .0505.' 



Th 



he proposed effective date of this action is 
January I, 1988. 



Th 



he public hearing will be conducted at 1:00 
p.m. on October 15, 1987 at Board Room, Ag- 
riculture Building, I W. Edcnton Street, 
Raleigh, A'C. 



c. 



omment Procedures: Interested persons 
may present statements cither orally or in writ- 
ing at the public hearing or in writing prior to 
the hearing by mail addressed to David S. 
McLeod, Chairman of the Structural Pest 
Control Committee, P. O. Box 27647, Raleigh, 
North Carolina 2761 1 . 

CHAPTER 34 - STRUCTURAL PEST 
CONTROL DIVISION 

SECTION .0500 - WOOD-DESTROYING 
INSECTS 

.0503 SUBTERRANEAN TERMITE 

CONTROL: BUILDINGS AFTER 
CONSTRUCTED (REPEALED) 

Filed as a Temporary Repeal Eff. August 24, 
1987 for a period of 30 days to expire on Sep- 
tember 22, 1987; G.S. 106-65.29. 

.0505 SUBTERRANEAN TERMITE 

PREVENTION FOR BUILDINGS 
UNDER CONSTRUCTION 
(REPEALED) 

Filed as a Temporary Repeal Eff. August 24, 
1987 for a period of 30 days to expire on Sep- 
tember 22. 1987; G.S. 106-65.29. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 



N, 



otice is hereby gh'en in accordance with 
G.S. J50B-I2 that the Social Services Com- 
mission intends to adopt regulations cited as 10 
NCAC3J .2301 - .2308. 



T 



he proposed effective date of this action is 
January 1, 1988. 



T 



he public hearing will be conducted at 10:00 
a.m. on October 15, 1987 at Social Sen'ices 
Commission Meeting. Woodoak Building, 1 100 
Nar.'aho Drh'e. Raleigh. A'.C. 



NORTH CAROLINA REGISTER 



393 



PROPOSED RULES 



Cc 



, omment Procedures: Any interested person 
may present his! her views and comments either 
in writing to or at the hearing or orally at the 
hearing. Any person may request information, 
permission to he heard, or copies of the pro- 
posed regulations by writing or calling Bonnie 
Allred, 325 .V. Salisbury Street, Raleigh, N.C. 
27011, 9/9-733-3055. 

CHAPTER 3 FACILITY SERVICES 

SUBCHAPTER 3.1 - THE OPERATION OF 
LOCAL CONFINEMENT FACILITIES 

SECTION .2300 - ENFORCEMENT OF 

MINIMUM STANDARDS PURSUANT TO 

G.S. I53A-223 

.2301 FXSPECTIONS 

All local confinement facilities shall be visited 
and inspected at least semiannually but may 
be inspected more frequently if determined 
necessary by the department or required by an 
agreement of correction entered into between 
the department and the governing body and 
other local officials responsible for a facility. 

Statutory Authority G.S. I43B-I53(3)d.; 

I53A-222. 

.2302 REPORT OF INSPECTION 

After each local confinement facility is in- 
spected, the inspector shall complete the Local 
Confinement Facility Semiannual Inspection 
Report, DFS-7923, as revised (hereinafter re- 
ferred to as "Report"). Upon completion of 
a report in which there are findings of non- 
compliance with 10 NCAC 3J .1400, .1500, 
.1600, .1700, .1800, or Subsections thereof, or 
G.S. 153A-224 or receipt of a report required 
by G.S. 153A-226 finding that a facility or its 
kitchen or other place for preparing food is 
disapproved for public health purposes, the 
procedures contained in 10 NCAC 3J .2303 - 
.2307 will control. In all other cases, the pro- 
cedures contained in G.S. 153A-222 will con- 
trol. 



Statutory Authority 
I53A-222; 153 A- 223. 



G.S. 143D-153(3)d.; 



.2303 FINDINGS OF NON-COMPLIANCE 
PURSUANT TO G.S. 153A-226 

If a finding is made, pursuant to G.S. 
153A-226, that a facility or its kitchen or other 
place for preparing food is disapproved for 
public health purposes, the provisions set out 
in 10 NCAC 3.1 .2306 or .2307 will control. 



Statutory Authority G.S. 143B-153(3)d.; 
153A-223; 153A-226. 

.2304 DETERMINATION THAT 

CONDITIONS JEOPARDIZE 
THE SAFE CUSTODY: SAFETY: 
HEALTH: OR WELFARE OF 
PERSONS CONFINED IN THE 
FACILITY 

(a) Fpon completion of the report, if there 
are findings of noncompliance with 10 NCAC 
3.1 .1400,-1500, .1600, .1700, .1X00. or Sub- 
sections thereof, or G.S. 153A-224, the report 
shall, within ten days of completion, be for- 
warded to the secretary, or his designee, to- 
gether with a written description of the 
conditions giving rise to the finding(s) of non- 
compliance and a preliminary determination 
as to whether the conditions, as reflected in the 
findings of noncompliance with respect to the 
Rules and Statutes set forth herein, jeopardize 
the safe custody, safety, health or welfare of the 
persons confined in the facility. 

(b) Notwithstanding (a) above, the report 
will be forwarded to the governing body and 
other local officials responsible for the facility 
within the time set forth in G.S. 153A-222 with 
a notation as follows: "The facility has been 
found in noncompliance with one or more of 
the Rules enumerated in 10 NCAC 3J .2304 
and noted in the attached Local Confinement 
Facility Semiannual Inspection Report. The 
enclosed report and other information has 
been forwarded to (secretary or his designee) 
on (date), for final determination pursuant to 
10 NCAC 3J .2304, as to whether the condi- 
tions which exist at your facility jeopardize the 
safe custody, safety, health or welfare of the 
persons confined therein. The final determi- 
nation will be made within 30 days of the 
above date and same will be sent to you to- 
eethcr with any action required pursuant to 10 
NCAC 3J .2305 - .2307." 

(c) Within 30 days of receipt of the report, 
the written description and preliminary deter- 
mination, the secretary, or liis designee, shall 
rcview : same and make the final determination. 
Without excluding noncompliance with other 
Rules and Statutes set forth in 10 NCAC 3J 
.2302, noncompliance with the following pro- 
visions shall be deemed to be a condition or 
conditions which jeopardize the safe custody, 
safety, health or welfare of the persons con- 
fined in the facility: 

( 1 ) Failure to have mattresses which com- 
ply with the flame retardant require- 
ments of 10 NCAC 3J .1412(c) and (d); 



394 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



(2) Failure to provide or maintain fire 
extinguishers in compliance with 10 
NCAC 3J .1413- .1417; 

(3) Failure to provide the required number 
or ways of fire escapes in compliance 
with 10 NCAC 3J .1418; 

(4) Failure to provide or maintain the re- 
quired smoke detectors in compliance 
with 10 NCAC 3J .1419; 

(5) failure to provide for the separation 
of juveniles and females in compliance 
with 10 NCAC 3J .1504 and .1505; 

(6) failure to have an emergency evacu- 
ation plan, or failure to have a posted 
master fire plan, in compliance with 10 
NCAC 3J .1506(a); 

(7) Failure to have jailers trained in the use 
of fire fighting equipment in compliance 
with 10 NCAC 3J .1506(b); 

(8) Failure to conduct quarterly fire drills 
in compliance with 10 NCAC 3J 
.1506(b); 

(9) Failure to have the local fire depart- 
ment include the facility in its regular 
fire-prevention inspection program, in 
compliance with 10 NCAC 3J .1506(c); 

(10) Failure to segregate inmates with con- 
tagious or infectious disease from the 
ueneral prisoner population, in compli- 
ance with 10 NCAC 3J .1507; or 

(11) Failure to have a medical plan in 
compliance with 10 NCAC 3J .1801. 

(d) If the final determination is that condi- 
tions in the facility do not jeopardize the safe 
custody, safety, health or welfare of the per- 
sons confined in the facility, the report will be 
submitted to the governing body and other lo- 
cal officials responsible for the facility pursuant 
to G.S. 153A-222. 

Statutory Authority G.S. 143B- I53(3)d.; 
I53A-222; 153.4-223. 

.2305 FINDINGS THAT CONDITIONS 
JEOPARDIZE THE SAFE 
CUSTODY: SAFETY: HEALTH 
OR WELFARE 

If there is a final determination that the con- 
ditions in the facility jeopardize the safe cus- 
tody, safety, health or welfare of the persons 
confined in the facility, the secretary, or his 
designee, shall, within 15 days of the final de- 
termination herein, either: 

(a) give notice of intent to order corrective 
action; 

(b) give notice of intent to order facility 
closed; 

(c) order corrective action; or 

(d) order the facility closed. 



Statutory Authority G.S. 
153A-223. 



I43B- 153(3 )d.; 



.2306 NOTICE OF INTENT TO ORDER 
CORRECTIVE ACTION AND 
NOTICE OF INTENT TO ORDER 
FACILITY CLOSED 

(a) The secretary, or his designee, may, prior 
to ordering corrective action or closure of the 
facility, give notice of intent to order corrective 
action or notice of intent to order the facility 
closed. The notice of intent shall state the 
department's specific intent and direct the 
governing body to enter into an agreement of 
correction with the department within 30 days 
alter receipt of the notice. 

(b) The agreement of correction will among 
other matters, set forth the areas of noncom- 
pliance, the manner in which the areas of 
noncompliance will be cured, the governing 
body's intention to correct the areas of non- 
compliance, a specific period of days within 
which the facility will be brought into compli- 
ance, said period of days shall be reasonable in 
number based on the amount of work required 
to make corrections, and a schedule of in- 
spections to monitor the facility's progress. 
Should the time period expire prior to the 
complete compliance, and the facility is mak- 
ing good faith efforts to affect compliance, the 
agreement of correction may be extended once 
for a period not to exceed 60 days. If the fa- 
cility is not brought into compliance within the 
time periods set forth above, the secretary, or 
his designee, shall order corrective action or 
order the facility closed. 



Statutory A ulhority 
153A-223. 



G.S. I43B-I53(3)d.; 



.2307 ORDER OF CORRECTIVE ACTION 
AND ORDER OF CLOSURE 

If the secretary, or his designee, determines 
that notice of intent to order corrective action 
or notice of intent to order the facility closed 
is not appropriate with respect to the facility, 
the secretary, or his designee, shall issue an 
order of corrective action or order the facility 
closed. Notice of the order of corrective action 
or notice of order to close the facility shall be 
given as provided for in G.S. 153A-223(1). 

Statutory Authority G.S. I43B-I53(3)d.; 
1 53 A- 223. 

.2308 DESIGNATION BY SECRETARY 

The secretary may designate a person to act 
for bim with respect to this Section in whole 



NORTH CAROLINA REGISTER 



395 



PROPOSED RULES 



or in part. The secretary's designation shall 
be in writing and shall be on file at the Jail and 
Detention Branch, licensure Section, Division 
of facility Services, Department of Human 
Resources, 701 Barbour Drive, Raleiuh, North 
Carolina 27603. 



Statutory Authority (7.5. 
I43B-I53(3)d.; I50B-22. 



I43R-I0(a), 



N, 



otice is hereby gwen in accordance with 
G.S. 1 SOB- 1 2 thai the Department of Human 
Resources intends to amend regulation cited as 
10 SC AC 3 R.I 003. 



T, 



he proposed effective date of this action 
February 1, 1988'. 



is 



Th 



he public hearing will be conducted at 10:00 
a.m. on October 16. 1987 at Division of Facility 
Scrrices, Hearing Room, Room 201, 701 
Barbour Drive, Raleigh, NC 27603. 



c. 



■omment Procedures: Address written 
comments to: Glenn B. Lassitcr, Esq.. Assist- 
ant to Director, 70/ Barbour Drive, Raleigh, 
NC 2 7 603. Comments accepted from Septem- 
ber 15 - October IS. 

SUBCHAPTER 3R - CERTIFICATE OF 
NEED REGULATIONS 

SECTION .1000 - SPECIAL CRITERIA 
AND STANDARDS: IN GENERAL 

.1003 STATE MEDICAL FACILITIES 
PLAN 

(a) The ISZ2 19SS North Carolina State 
Medical Facilities Plan contains the following 
information: 

( 1 ) inventory of certain categories of inpa- 
tient and outpatient health care facili- 
ties, including number of beds and 
utilization of such; 

(2) type of services provided by each cate- 
gory of health care facility; 

(3) projections of need for acute care hos- 
pital (including rehabilitation services), 
long-term care facilities (including 
nursing homes, home health agencies. 
and hospice inpatient facilities), mental 
health facilities and end stage renal 
dialysis services for various geographical 
areas of the state; 

(4) statement of policies related to acute 
care facilities, rehabilitation services, 



long-term care, psychiatric facilities, 
chemical dependency facilities, and fa- 
cilities for intermediate care for the 
mentally retarded, which are used with 
other criteria contained in this Sub- 
chapter and in G.S. 13 IE- 183 and need 
projections to determine whether appli- 
cations proposing additional beds and 
services of these types may be approved 
under the certificate of need program, 
(b) This plan can be obtained from the Di- 
vision of Facility Services, 701 Barbour Drive, 
Raleigh. North Carolina, at a cost of forty 
dollars ($40.00) per copy. This plan is also 
available for inspection at the Division of Fa- 
cility Services. 

Statutory Authority G.S. I3IF-I77(1). 



No 



otice is hereby given in accordance with 
G.S. I SOB- 1 2 that the Division of Medical As- 
sistance intends to amend regulations cited as 
10 NCAC26H .0/02; and .0104. 



Th 



he proposed effective date of this action is 
February L 1988. 



Tk 



he public hearing will be conducted at 1:30 
p.m. on October IS, 1987 at North Carolina 
Division of Medical Assistance, 1985 L.'mstead 
Drive, Room 201, Raleigh, N.C. 27603. 



a 



omment Procedures: Written comments 
concerning this amendment must be submitted 
by October IS, 1987 to: Director, Division of 
Medical Assistance, 1985 Umstead Drive, 
Raleigh, N.C. 27603. Oral comments may be 
prese'nted at the hearing. 

CHAPTER 26 - MEDICAL SERVICES 

SUBCHAPTER 26H - REIMBURSEMENT 
PLANS 

SEC HON .0100 - REIMBURSEMENT 

FOR SKILLED NURSING FACILITY AND 

INTERMEDIATE CARE FACILITY 

SERVICES 

.0102 RATE SETILNG METHODS 

(b) The prospective rate consists of two 

components: a direct patient care rate and an 

indirect rate computed and applied as follows: 

(2) To compute each facility's direct rate, the 

direct base year cost per day is increased 

by adjustment factors for price changes 



396 



.NORTH CAROLINA REGISTER 



PROPOSED RULES 



as set forth in Rule .0102(c). A facili- 
ty's direct rate cannot exceed the maxi- 
mum rates set for a SNF or ICF. 
However, the Division of Medical As- 
sistance may negotiate Jircct rates that 
exceed the maximum rate tor ventilator 
dependent patients. - Payment of such" 
special direct rates shall be " made only 
alter specilic prior approval of the Di- 
vision ot Medical Assistance. 

Authority G.S. 108A-25(b); 108A-54; 
IOSA-55; S. L. 1985, c.479, s.86; 42 C.F.R. 
447 Subpart C. 

.0104 COS! REPORTING: AUDITING 
AM) SETTLEMENTS 

(d) The specific cost reporting guidelines re- 
lated to tliis plan are set forth in the following 
paragraphs. The state will publish guidelines, 
consistent with the provisions of this plan, 
concerning the proper accounting treatment 
for items described in this Rule as related op- 
crating expenses. These guidelines will be is- 
sued prior to April 1, 1985. The guidelines 
may be subsequently modified prior to the be- 
ginning of each cost reporting period. In no 
case, however, shall any modifications be ap- 
plied retroactively. A provider should request 
clarification in writing from the state if there is 
uncertainty about the proper cost center clas- 
sification of any particular expense item. 

(1) Nursing Cost Center includes the cost 
of nursing staff, medical supplies, and 
related operating expenses needed to 
provide nursing care to patients, in- 
cluding the Medical D i rector and the 
Pharmacy Consultant , medical records, 
utilization review, the Medical Director 
and the Pharmacy Consultant. Also, 
the cost (rental or purchase) of special 
equipment that is medically required to 
sustain life may be churned to this cost 
center. Such equipment shall include 
oxygen concentrators, respirators and 
ventilators. 
(11) Property Ownership and Use: 

(A) This cost center includes all allow- 
able costs related to the acquisition 
and/or use of the physical assets 
including building, fixed equip- 
ment and movable equipment, that 
are required to deliver patient care, 
except the special equipment, as 
specified in .0104(d)(1) above that 
may be charged to the nursing cost 
center. Specifically it includes the 
following items: 



(i) all equipment expense regardless 
of equipment nature, 

(ii) lease expense for any physical as- 
sets, 

(iii) depreciation of assets, 

(iv) interest expense of asset related li- 
abilities, e.g., mortgage expense. 

Authority G.S. 108A-25(b); I08A-54; 
I08A-55; S.L. 1985, c. 479, s. 86; 42 C.F.R. 
447, Subpart C. 



N. 



otice is hereby given in accordance with 
G.S. 1 5013- 1 2 that the Social Senices Com- 
mission intends to adopt, amend, and repeal 
regulations cited as 10 NCAC 46E .0106; 
.0/07; .0228 - .0243; .0301 - .0303; 10 NCAC 
46F .0101 - .0103; .0108 - .0111; 10 NCAC 
46G .0101 - .0106; .0108; .0201; 10NCAC49E 
.0001 - .0003. 



T„ 



he proposed effective date of this action is 
January 1, 1988. 



T„ 



he public hearing will be conducted at 10:00 
a.m. on October 15, 1987 at Woodoak Building, 
1/00 Xavaho Drive, Raleigh, N.C. 27609. 



a 



- omment Procedures: Any interested person 
may present his/her views and comments cither 
in writing to or at the hearing or orally at the 
hearing. Any person may request information, 
permission to be heard, or copies of the pro- 
posed regulations by writing or calling Bonnie 
Allred, 325 N. Salisbury Street, Raleigh, N.C. 
27611, 919-733-3055. 

CHAPTER 46 - DAY CARE RULES 

SUBCHAPTER 46E - DAY CARE 
CENTER CERTIFICATION 

SECTION .0100 - GENERAL 

.0106 KINDS OF APPROVAL (REPEALED) 
.0107 MAINTAINING STANDARDS 
(REPEALED) 

Statutory Authority G.S. I43B-I53 (2a). 

SECTION .0200 - CERTIFICATION 
STANDARDS FOR DAY CARE CENTERS 

.0228 ADMINISTRATION: OPERATIONAL 

POLICIES (REPEALED) 
.0229 ADMINISTRATION: PERSONNEL 



NORTH CAROLINA REGISTER 



397 



PROPOSED RULES 



POLICIES (REPEALED) 
.0230 ADMINISTRATION: RECORD 

KEEPING (REPEALED) 
.0231 ADMINISTRATION: FISCAL 

MANAGEMENT (REPEALED) 
.0232 HEALTH (REPEALED) 
.0233 PHYSICAL ENVIRONMENT: SPACE 

(REPEALED) 
.0234 PHYSICAL ENVIRONMENT: 

EQUIPMENT (REPEALED) 
.0235 NUTRITION (REPEATED) 
.0236 GROUP SIZE AND STAFFING 

RATIOS (REPEALED) 
.0237 STAFF QUALIFICATIONS 

(REPEATED) 
.0238 STAFF TRAINING (REPEATED) 
.0239 CAREGIVTNG ACTIVITIES 

(REPEALED) 
.0240 ACTIVITY' AREAS AND 

EQUIPMENT (REPEALED) 
.0241 BEHAVIOR MANAGEMENT 

(REPEATED) 
.0242 TRANSPORTATION (REPEATED) 
.0243 TRANSPORTATION POLICIES 

(REPEATED) 

Statutory Authority G.S. 143-153 (2a). 
SECTION .0300 - FORMS 

.0301 CHILD'S APPLICATION 

(REPEATED) 
.0302 CHILD'S MEDICAL REPORT 

(REPEATED) 
.0303 APPLICATION TOR APPROVAL 

(REPEALED) 

Statutoty Authority G.S. 143B-153 (2a); 
I43B-153 (6). 



standards for child day care homes as codified 
in 10 NCAC 3U .1700 and all other applicable 
state child day care home requirements in 10 
NCAC 3U and Article 7 of Chapter 1 10 of the 
N.C. General Statute. 

(b) The operator of any home in the pur- 
chase of care program must assure that the 
home complies with all applicable provisions 
of the Civil Rights Act of 1%4 and all re- 
quirements imposed thereunder. The operator 
shall sign a statement of assurance on a form 
provided by the section. Copies of the state- 
ment shall be on file in the section and in the 
home. 

(c) Any home that wishes to participate in 
the purchase of care program must be issued 
an approval notice for participation and pay- 
ment from the section. 

Statutory Authority G.S. 143B-153 (2a): S.L. 
19S5. c.479, s. 97. 

.0109 IMPLEMENTATION 

(a) Any home entering the purchase of care 
program on or after January 1, 1987, must 
comply with the requirements set forth in Rule 
.0108 of this Section. 

(b) Homes participating in the purchase of 
care program on December 31, 1986, shall 
continue to be eligible for participation pro- 
vided they remain in compliance with the 
standards and procedures codified in this Sub- 
chapter until a representative of the section has 
documented that the home is in compliance 
with the requirements set forth in Rule .0108. 

(c) Each child day care home shall be evalu- 
ated annually by the section for compliance 
with the requirements for participation in the 
purchase of care program. 



SUBCHAPTER 46F - FAMILY DAY CARE 
HOME CERTIFICATION 



Statutoty Authority G.S. 143B-153(2a); S.L. 
19S5, c. 479, s. 97. 



SECTION .0100 - FAMILY DAY CARE: 
APPROVAL PROCEDURES 

.0101 RESPONSIBILITY TOR APPROVAL 

(REPEALED) 
.0102 ADDRESS LOR INFORMATION 

(REPEALED) 
.0103 CONSULTANTS: MEETING 

REQUIREMENTS (REPEALED) 

Statutoty Authority G.S. 143B-153 (2a). 

.0108 PURCHASE OF CARE 

(a) Any home which wishes to participate in 
the state purchase of care program as defined 
in HI NCAC 46A .0005 must comply with the 



.0110 CONTINUED PARTICIPATION 

(a) Any home approved for participation in 
the purchase of care program will continue to 
be eligible for as long as the home maintains 
compliance with all of the requirements set 
forth in this Subchapter. 

(b) When a home is found to be out of 
compliance with any requirement for partic- 
ipation, the section may set a time limit for 
compliance. If the home fails to comply 
within the set time limit, approval will be ter- 
minated. 

Statutoty Authority G.S. 143B-I53 (2a). 

.0111 APPEALS 



}9S 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Any appeal for denial or termination of ap- 
proval shall be made according to the appeals 
procedures used by the division as codified in 
10 NCAC 3B and 3U. 



Statutory Authority 
I50B-23. 



G.S. /43B-/53 (2a); 



SUBCHAPTER 46G - INDIVIDUAL 

CHILI) CARE ARRANGEMENT 

APPROVAL 

SECTION .0100 - GENERAL 

.0101 DIVISION RESPONSIBILITY 

(a) The Office of \Xtx- Care Service s Child 
Day Care Section in the Division of Facility 
Services is responsibTcTor the ovcralTmanage- 
mcnt of the standards and procedures for ap- 
proving individual child care arrangements in 
which day care funds administered by the De- 
partment of Human Resources are used to pay 
the day care costs for children of families eligi- 
ble for assistance with day care costs. Each 
of the 100 county departments of social ser- 
vices is responsible for enforcing standards and 
procedures for Individual Child Care Arrange- 
ments in accordance with rules in 10 NCAC 
46G. 

(b) A county department of social services 
may contract with another public or private 
non-profit agency which is not a provider of 
child day care services to perform it* the 
enforcement and management functions BIT 
scribed in Paragraph (a) of this Rule and 
specified in Sections .0100 and .0200 of 10 
NCAC 46G. 

Statutory Authority G.S. 143B-153 (2a). 

.0102 ADDRESS FOR INFORMATION 
AND ASSISTANCE 

Information concerning the approval stand- 
ards and procedures for individual child care 
arrangements is available from the 100 county 
departments of social services or the Office of 
Day Care Serv i ce s Child Day Care Section 
during normal business hours. 

Statutory Authority G.S. I43B-153 (2a). 

.0103 DEFINITIONS 

"Individual child care arrangement" (ICCA) 
means a plan whereby day care is provided to 
one child or the children of one family may be. 
cared fot iu the child' s home ot in the home 
of the caregiver during a portion of the day or 
night when the parent/responsible adult is not 
in the home or is otherwise unable to provide 



care. 4-he caregiver may be a relative , friend , 
neighbor , of someone referred to tUc mother 
La- the county department of soci a l service s. 
It is permissible to use a caregiver who has 
children of her own in the home even though 
her children and the children for whom she is 
providing day care are unrelated. Any indi- 
vidual child care arrangement (ICCA) for 
which a vendor payment will be made must 
be approved in accordance with rules in this 
Subchapter and must meet other applicable 
rules in 10 NCAC 46. 

(1) For the purpose of vendor payment, care 

in the child's home by a member of the 
household will be restricted to house- 
hold members other than the child's 
parents or responsible adult. 

(2) In some instances it is a matter of 
judgment as to whether children are to 
be considered a part of one family for 
the purpose of making a payment for 
an ICCA. -LUe following guideline s a&- 
)4*t m making this determination , 
Children will always be considered as 
part of one family when one of the fol- 
lowing relationships exist: 

(A) children who are full or half siblings; 

(B) children who are first cousins; 

(C) children who are aunts or 
uncles/nieces or nephews of other chil- 
dren in care; 

(D) related or unrelated children who re- 
side in the same household. 

Statutory Authority G.S. 143B-153 (2a). 

.0104 COUNTY DEPARTMENT 
RESPONSIBILITY 

(a) The county department shall work with 
the parent/responsible adult in understanding 
and utilizing an individual child care arrange- 
ment to the child's benefit when an individual 
child care arrangement is used. 

(b) The county department shall involve the 
parent responsible adult in the identification 
of an individual child care arrangement 
caregiver. 

(c) County department staff shall carefully 
assess the use of an approved ICCA to assure 
that the needs of the child and his family may 
be met. 

(d) The county department shall be respon- 
sible for the approval and monitoring of all 
individual child care arrangements from which 
care is purchased with funds administered by 
the Department of Human Resources accord- 
ing to standards established by the Social Ser- 
vices Commission. 



NORTH CAROLINA REGISTER 



399 



PROPOSED RULES 



(c) The county department shall provide a 
copy of the individual child care arrangement 
standards ut a nummary of the stand a rds , ut 
copy ut the ICCA approval checklist, and 
checklist, along with a copy of the vendor 
purchase agreement to the caregiver. 



The 



county department staff shall review standards 
and the agreement with the caregiver for the 
purpose of assuring the caregiver's knowledge 
of the program and fiscal standards applicable 
to the arrangement. 

(f) The county department shall be respon- 
sible for documenting and recording informa- 
tion to show that the individual child care 
arrangement meets required program stand- 
ards. Forms to document approval and to re- 
cord frequency and content of monitoring will 
be provided to counts departments by the Of- 
fice oi Day- Case Sewices section. 

(g) The county department shall enter a 
vendor purchase agreement with the provider 
and parent/responsible adult on a standard 
form furnished by the Office uf Clay- Care Sec- 
wees section. 

(h) The county department may provide, to 
the extent funds and staff are available, techni- 
cal assistance and training to the provider to 
assure the adequacy of the approved arrange- 
ment. 

Statutory Authority G.S. 143B-153 (2a). 

.0105 CONSULTANTS 

The Office at" Day. Care Services section pro- 
sides day- eate consultants to help county de- 
partments in the development, approval and 
monitoring of individual child care arrange- 
ments. County departments are advised to 
contact the day. care consultant ut other state 
day. caw staff a*, section when assistance is 
needed. 

Statutory Authority G.S. I43B-153 (2a). 

.0106 NEED TO MEET REQUIREMENTS 

lu Provisional approval may be. issued fut 
l i mited time period U* uax. providers meeting 
appropriate requirements tut provisional ap- 
proval 



(_u4 All standards must be met tut tuli ap- 
proval to be. issued , 

U4 (a) bach ICCA must be evaluated for 
compliance every si* months , annually. 

( b ) When an arrangement i s found to be out 
ot compliance with any requirement tor par- 
ticipation, the county department may set a 
time limit for compliance" It the arrangement 



lor comr 



tails to comph 

provaT Will be terminated 



thin the set time limit, ap- 



Statulory Authority G.S. I43B-I53 (2a). 

.0108 APPEALS 

Any ICCA desiring to appeal a decision by 
the county department of social services shall 
follow the appeals procedures for grant-in-aid 
programs pursuant to G.S. 108A-79. The di- 
rector of the county department shall provide 
the ICCA provider or applicant with appro- 
priate information about the procedures for 
such an appeal. 

Statutory Authority G.S. 10SA-71; I08A-73; 
108A-79; MSB- 153 (2a). 

SECTION .0200 - STANDARDS FOR 

INDIVIDUAL CHILD CARE 

ARRANGEMENTS 

.0201 APPROVAL AND REGISTRATION 

(a) To obtain full approval status, an indi- 
vidual child care arrangement (ICCA) 
caregiver must comply with all standards set 
forth to this Section , for registration of child 
day care homes. These standards and the 
specific measures by which compliance with 
these standards is documented arc published in 
the ICCA Standards Manual called Standards 
for Registration of Child Day Care Homes and 
the Sell -Check List which ts are available from 
the Office of tUy- Care Services Child Day- 
Care Section, Division of Facility Services at 
d2o North Sal i s bun . ' Street , at the address 
given in 10 NCAC 46A .0001. 

(b) Each individual child care arrangement 
must also meet applicable state requirements 
for registration of day. eate plans child day care 
homes as specified in 4- NCAC 16, 10 NCAC 
3U . 1700, with applicable regulations in 10 
NC ; \C~ 1T: and Article 7 of Chapter 111), and 
with any other state and local regulations for 
the operation of day care as specified by state 
and local authorities. 

Statutory Authority G.S. 143B-I53(2a); S.L. 
1985; c.479, s. 97. 

CHAPTER 49 - AEDC 

SUBCHAPTER 49E - UNEMPLOYED 
PARENT PROGRAM 

.0001 GENERAL PROCEDURES 

(a) Requirements pertaining to operation ot 
the Unemployed Parent Program are found in 
45 CFR 233.100. 



400 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



(b) All requirements found in 10 NCAC 49A 
and B, except 10 NCAC 4913 .0306, shall apply 
for the Unemployed Parent Program. 

Authority G.S. 10SA-28; 143B-153; Chapter 
738, Section 79, 1986 Session Laws (1987 
Regular Session); 45 CFR 233.100. 

.4)002 COVERAGE AND 
PARTICIPATION 

(a) Tor purposes of the Unemployed Parent 
Program, a dependent child is a needy child 
who is living with his mother and father who 
are legally married to each other, as required 
by G.S. 108A-28, in a place of residence 
maintained by them as their own home; and 
who is under age 18 or under age 19 and a 
full-time student in a secondary school (or in 
the equivalent level of vocational or technical 
training), if, before he attains age 19, he may 
reasonably be expected to complete the pro- 
gram of such secondary school (or such train- 
ing). 

(b) Assistance shall not be continued for a 
temporary period when the principal earner 
returns to work. 

Authority G.S. I08A-28; 14311- 1 53; Chapter 
738, Section 79, 1986 Session Laws (1987 
Regular Session); 45 CFR 233.100. 

.0003 ELIGIBILITY VERIFICATIONS 

(a) The applicant shall be responsible for 
pursuing and providing the verifications as 
outlined in (b) below. 

(b) The following shall be verified as indi- 
cated. 

(1) Determination of the principal wage 
earner shall be made by use of the fol- 
lowing: 

(A) Fmployment Security Commission 
records; or, 

(B) Income tax returns; or, 

(C) Wage stubs; or, 

(D) Written statement from previous 
employers; or, 

(E) Written statement from the applicant 
if the applicant has pursued the verifi- 
cations in (A) through (D) and can 
provide documentation these verifica- 
tions arc unavailable. 

(2) If previous wages and hours worked of 
both parents are equal, the parents shall 
designate in writing which is the princi- 
pal wage earner. 

(3) Verification of the 30 days of unem- 
ployment shall be made by use of the 
following: 



(A) Written statement from previous 
employer and a written statement from 
the applicant; or, 

(B) Employment Security Commission 
records and a written statement from 
the applicant; or, 

(C) If the applicant has pursued the ver- 
ifications in (A) and (B) and can pro- 
side documentation these verifications 
arc unavailable, the county shall accept 
only the applicant's written statement. 

(4) Verification of the appropriate quarters 
of employment shall be made by use of 
the following: 

(A) Employment Security Commission 
records; or, 

(B) Written statement from previous 
employers; or, 

(C) Income tax returns; or, 

(D) Wage stubs; or, 

(E) County department of social services 
records on CWFP or WIN; or, 

(F) A written statement from the appli- 
cant if the applicant has pursued the 
verifications in (A) through (E) and can 
provide documentation these verifica- 
tions are unavailable. 

(5) Verification of the parents' marriage 
shall be done by use of the following: 

(A) Marriage certificate; or, 

(B) Church records; or, 

(C) Family Bible; or, 

(D) Government records. 

Authority G.S. I08A-28; I43D-I53; Chapter 
738, Section 79, 1986 Session Laws (1987 
Regular Session): 45 CFR 233.100. 



TITLE 15 - DEPARTMENT OF 

NATURAL RESOURCES AND 

COMMUNITY DEVELOPMENT 



No 



otice is hereby given in accordance with 
G.S. 150B-12 that Coastal Management intends 
to adopt and amend regulations cited as 15 
NCAC 7H .0507; 7K .021 1 . 



T„ 



he proposed effective dale of this action is 
February 1, 1988. 



T„ 



he public hearing will be conducted at 7:30 
p.m. on October 22, 1987 at Nags Head Mu- 
nicipal Building, Nags Head, NC. 



NORTH CAROLINA REGISTER 



401 



PROPOSED RULES 



C 



omme.nl Procedures: All persons interested 
in these matters are invited to attend the public 
hearing. The Coastal Resources Commission 
will receive written comments up to the date of 
the hearing. Any persons desiring to present 
lengthy comments is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. Additional 
information concerning the hearing or the pro- 
posals may be obtained by contacting: Portia 
Rochelle, Division of Coastal Management, 
P.O. Box 27687, Raleigh, NC 27611-7687, 
(919 1 733-2293. 

CHAPTER 7 - COASTAL MANAGEMENT 

SUBCHAPTER 711 - STATE GUIDELINES 

FOR AREAS OF ENVIRONMENTAL 

CONCERN 

SECTION .0500 - NATURAL AND 
CULTURAL RESOURCE AREAS 

.0507 UNIQUE COASTAL GEOLOGIC 
FORMATIONS 

( d ) Designation. The Coastal Resources 
Commission herern designates Jockey's Ridge 
as a unique coastal geologic formation area of 
environmental concern. The boundaries ol the 
area of envi ronmental concern shall he as d"i> 
pictcd on a 



man approved hv the CoastaT Re- 
sources Commission on July 24, 1 9S7. and on 
file with the Division ot CoasfaT Management. 
TTTis area includes the entire rights of way of 
NC~ l7x~Bypass. SR J221_ (SouruTSiJe RoadT 
Villa Dunes Drue, and I lollowel 



ids bound this area. 



Street where 
Jockey's Ridge 
is the tallest active sand dune along the 
Atlantic Coast of the l.'nited States. Located 



1 lead 



Dare 



within the Town of Nags 
( 'ounty, between NC 1 58 and Roanoke 
Sound, the Ridge represents the southern 
extremity of a back barrier dune system which 
extends north along Currituck Spit into 



Virginia. Jockey's Ridge is an excellent ex- 
ample of a medano. a large isolated hill of 
sand, asymmetrical in shape and lacking vege- 
tation. Jockey s Ridge is the largest medano 
in North Carolina and has been designated a 
National Natural I andmark bv the U.S. De- 
partment of the Interior. 
(e) Use Standards. Jockey's Ridge. 



I se Standards 
opment within the 



lock 



ev s 



Devel- 
Ridge AFC shall 
be consistent with the following minimum use 
standards: 



( 1 ) Development which requires the move- 
ment of greater than ten cubic yards of 



sand per year from the area within the 
AFC boundary shall require a permit; 
(2) All sand which is collected from the area 
within the AFC boundary shall be re- 
deposited at locations within the Jock- 
ey's Ridge State Park designated bv the 
Division ot Coastal Management in 
consultation with the Division of Parks 
and Recreation. 



(3) Development activities shall not signif- 
icantlv alter or retard the free move- 



ment of sand except when necessary for 

the purpose of: 
(A) maintaining a road, residential 

commercial structure, accesswav. 



or parking area; 
(13) maintaining or establishing a primary 
or frontal dune in accordance with 
7? NCAC 7H .0308(b). 



Statutory Authority G.S. II3A-I07(a), (b); 
1 13A-1 13(b)(4) g. 

SUBCHAPTER 7K - ACTIVITIES FN 

AREAS OF ENVIRONMENTAL 

CONCERN WHICH DO NOT REQUIRE 

A COASTAL AREA MANAGEMENT ACT 

PERMIT 

SECTION .0200 - CLASSES OF MINOR 
MAINTENANCE AND IMPROVEMENTS 
WHICH SHALL BE EXEMPTED FROM 

THE CAMA MAJOR DEVELOPMENT 
PERMIT REQUIREMENT 

.021 1 JOCKEY'S RIDGE AFC 

All development in the Jockey's Ridge area 
of environmental concern designated pursuant 
to 15 NCAC 7H .0507 that is not within any 
other designated area of environmental con- 
cern shall be exempt from CAMA major and 
minor permit requirements provided it does 
not involve movement of more than ten cubic 
yards of sand per year from the area within the 
AFC boundary. 

Statutory Authority G.S. 1 1 3A- I03(5)(c). 



No 



otice is hereby given in accordance with 
G.S. I SOB- 12 that Coastal Management intends 
to amend regulations cited as 15 NCAC 7 J 
.0701; .0702. 



T„ 



he proposed effective date of this action is 
February 1. 1988. 



402 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



T„ 



he public hearing will he conducted at 10:00 
a.m. on October 20, 1987 at Marine Fisheries 
Building, 341 1 Arcndell Street. Morehead City, 
NC. 



C 



omment Procedures: All persons interested 
in these matters are invited to attend the public 
hearing. The Coastal Resources Commission 
will receive written comments up to the date of 
the hearing. Any person desiring to present 
lengthy comments is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. Additional 
information concerning the hearing or the pro- 
posals may be obtained by contacting: Portia 
Roche lie, Division of Coastal Management, 
P.O. Box 276S7, Raleigh, NC 27611-7687, 
(919) 733-2293. 

SUBCHAPTER 7.J PROCEDURES FOR 

HANDLING MAJOR DEVELOPMENT 

PERMITS: VARIANCE REQUESTS: 

APPEALS FROM MINOR 

DEVELOPMENT PERMIT DECISIONS: 

AND DECLARATORY RULINGS 

SECTION .0700 - EXPEDITED 

PROCEDURES FOR CONSIDERING 

VARIANCE PETITIONS 

.0701 VARIANCE PETITIONS 

(c) Petitions shall be submitted to. atu: Office 
oi Coastal Management field office at may be 

mailed directly to the Director of the Office 
Division of Coastal Management, P.O. Box 
276X7, Raleigh, N.C. 27611. 
(f) A variance request will be considered by 
the commission at a regularly scheduled meet- 
ing. Petitions will be scheduled no later than 
the second regularly scheduled meeting fol- 
lowing the date of receipt of the petition by the 
commission Division of Coastal Management. 
except when a later meeting is agreed upon by 
the petitioner and the Office Division of 
Coastal Management. A complete variance 
petition, as described in paragraph (e) 01 this 
Rule, must be received bv the Division of 
Coastal Management a minimum ot tour 
weeks in advance of a regularly scheduled 
commission meeting to be considered Bv the 
commission at that meeting. 

Statutory Authority G.S. II3A-I20(c); 
II3A-I24(c)(5). 



(c) The petitioner shall be provided an op- 
portunity to review the written description 
prepared by the staff and to agree or disagree 
with the facts and statements therein. The 
written description presented to the commis- 
sion shall include only those facts and state- 
ment that have been agreed upon and 
stipulated to by both the petitioner and the 
staff. If the staff docs not reach agreement 
with the petitioner and receive the petitioner's 
approval of the written description at least two 
weeks prior to a resiularlv scheduled Coastal 

variance 



prior to 



Resources Commission mcetim 
petition sha 



the 
it the next reizu- 



be considered 
lady schedulcd~~commission meeting. If the 
stall determines that agreement cannot be 
reached on sufficient facts on which to base a 
meaningful variance decision, then the petition 
will be considered by means of an administra- 
tive hearing. Copies of the agreed-upon de- 
scription shall be provided to the permit officer 
making the initial permit decision prior to 
commission consideration of the variance. 

Statutory Authority G.S. I I3A- 120(c): 
I13A-I24(c)(5). 

TITLE 21 - DEPARTMENT OF 
LICENSING 



N. 



otice is hereby given in accordance with 
G.S. 1 SOB- 1 2 that the Board of Medical Ex- 
aminers of the State of North Carolina intends 
to adopt and amend regulations cited as 21 
NCAC 32B .0/09; .0607. 



T„ 



he proposed effective date of this action is 
January I, 1988. 



Tk 



he public hearing will be conducted at 1 1:00 
a.m. on October 19, 1987 at Senate Room, 
Holiday Inn State Capital, 320 Hillsborough 
Street, Raleigh, N.C. 



C 



omment Procedures: Persons interested 
may present written or oral statements relevant 
to the actions proposed at a hearing to be held 
as indicated above. Written statements not 
presented at the hearing should be directed be- 
fore October 5. 1987, to the following address: 
Administrative Procedures, N.C. Board of 
Medical Examiners, P.O. Box 26808, Raleigh, 
N.C. 2761 1-6808. 



.0702 STAFF REVIEW OF VARIANCE 
PETITIONS 



CHAPTER 32 - BOARD OF MEDICAL 
EXAMINERS 



NORTH CAROLINA REGISTER 



403 



PROPOSED RULES 



SUBCHAPTER 32B - LICENSE TO 
PRACTICE MEDICINE 

SECTION .0100 LICENSE BY WRITTEN 
EXAMINATION 

.0109 FEE 

1 ee for both components taken together, or 
for eacTT component taken separately, shall He 
one hundred anil lTltv dollars (£150.00). plus 
the cost ol test materials, to he paid at time o\_ 
application. 

In the event applicant fails to make a passing 
score on the examination, there will be no re- 
fund of fee. In the event applicant does not 
appear for the regularly scheduled examination 
or application is withdrawn, no portion of the 
fee will be refunded. 

Statutory Authority G.S. 90-/5. 

SECTION .0600 - CERTIFICATE OF 

REGISTRATION FOR VISITING 

PROFESSORS 

.0607 CERTIFIED PHOTOGRAPH 

.Applicant must furnish recent photograph (at 
least 2 inches by 2 inches), certified as his true 
likeness by the dean of his medical school with 
the dean's signature and the seal of the school 
affixed thereon. 

Statutory Authority G.S. 90-12. 



N, 



otice is hereby given in accordance with 
G.S. I SOB- 1 2 that The North Carolina State 
Board of Mortuary Science intends to amend 
regulation cited as' 2/ NCAC 34 .0123. 



T„ 



he proposed effective date of this action is 
January 1. 19SS. 



T, 



he public hearing will be conducted at 10:00 
a.m. on October 15, 1987 at Office of State 
Board of Mortuary Science, 412 North Wilm- 
ington Street. Raleigh, NC 27601. 



C 



ommenl Procedures: Interested persons 
may present statements either orally or in writ- 
ing at the public hearing or in writing prior to 
the hearing by mail addressed to Ms. Corrine 
Culbrelh, Executive Secretary. State Board of 
Mortuary Science. 4/2 North Wilmington 
Street. Raleigh, NC 27601. 



CHAPTER 34 - MORTUARY SCIENCE 

SECTION .0100 - GENERAL 
PROVISIONS 



0123 FEES 






Fees shall be as follows: 




Establishment permit 






Application 


$ 50.00 


$ 150.00 


Annual renewal 


$ 50.00 


$100.00 


Late renewal penalty 


f $ 35.00 


$ 75.00 


Courtesy card 






Application 


$ 25.00 




Annual renewal 






Embalmer 


$ 15.00 




Funeral director 


$ 15.00 




Funeral service 


$ 30.00 




Out-of-state licensee 






Application 


$ 50.00 


SI 50.00 


Embalmer, funeral 






director, funeral 






service 






Application 


$ 5X1.00 




Application. North 







Carolina resident 



A££l 



ication. 



non-resident 



Annual renewal 
Embalmer 
Funeral director 
Funeral service 
Reinstatement fee 
Embalmer 
Funeral director 
Funeral service 
Resident trainee permit 
Application $ 

.Annual renewal $ 

Late renewal penalty $ 
Duplicate license 
certificate 

Chapel registration 
Application 
Annual Renewal 



20.111) 


20.00 


40 nn 
20.00 


?nno 



$ 
$ 

i 

$ 

$, 
$4iX00 



35.00 

10.00 

5.00 

$ 15.00 



$100.00 


$100.00 


$ 25.00 


$ 25.00 


$ 50.00 


$ 25.00 


$ 25.00 


$ 50.00 



$151)00 
$ 75.00 



Statutory Authority G.S. 90-2 10. 23 (a); 
90-2/0.28: 150A-I1. 



No 



otict is hereby given in accordance with 
G.S. I50B-/2 that 'the N.C. State Board of 
Opticians intends to adopt and amend regu- 
lations cited as 2/ XCAC 40 .0/04: .0/08; 
.0111; .0206: .0208; .0212; .0303; .0312; .0320. 



404 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Th 



he proposed effective date of this action is 
February I, I9S8. 



Th 



he public hearing will be conducted at 2:00 
p.m. on October 15, 1987 at Conference Room 
at the Board Office, 412 North Wilmington 
Street, Raleigh, N.C. 27601. 



C 



omment Procedures: Any interested person 
may present oral or written comments at the 
Hearing. Written statements not presented at 
the Hearing should be directed to the N.C. 
State Board of Opticians. 412 N . Wilmington 
Street, Raleigh, N.C. 27601. Requests to be 
heard or written statements to be presented at 
the Hearing should be directed by October 10, 
1987 to same address above. 

CHAPTER 40 - OPTICIANS 

SECTION (H()0 - LOCATION 

.0104 INFORMATION AND 
APPLICATION 

All persons making inquiries regarding liccn - 
huc u-dl be settl mi informat i on Idler atid an 
application form which im i ii he completed i» 
order to git tot the l i censur e examination , dhe 
appl i cation requires information as to wc tef- 
crcnccs tot good moral character , qua li fica - 
tions , educational training , photograph , Mid 
letters of recommendation . A certification thai 
the applicant ha* tiot violated the licensing lau: 
must also he suppl i ed . 

Any person desiring to become a North Ca- 
rolina licensed optician, upon request, will he 
provided appropriate information on the re- 
quirements tor licensure, including an applica- 
tion torm prepared hv the hoard, which must 
be completed in order to sit tor the licensure 
examination. The application shall require 
information including, but noTlimited to, the 
applicant's age, qualifications, a current pho- 
toara ~>h. letters ot recommendation and szood 



mora 



" character, and a statement whether the 

applicant has violated the opticianry laws or 
rules of this State. 1 ach application must be 
signed under oath. 

Statutory Authority G.S. 90-234 through 90- 
255: 93B-3. 

.0108 FEES 

(2) each initial or duplicate license 1(1.00 

Statutory Authority G.S. 90-246. 



.0111 RULE-MAKING AND 

ADMINISTRATIVE HEARING 
PROCEDURES 

U4 Xhe Model Administrative Procedures 
fot Rule - Making aau 1 lear i ngs , cod i fied as Hi- 
de 22r Subchapters 2U- Mid 2C of the North 
Carolina Adm i nistrative Coda, effective Sep - 
tember 2U, I ' . iSll , mc- hereby adopted by- refer - 
ence to a pply to actions of the State Board , of 
Opticians . 

<-u4 -the definitions conta i ned in 22 NCAC 
2A . 0005 ate adopted by reference Mid shall 
apply to the Board of Opticians w i th the fob 
lowing mod i ficat i ons ; 

(44 4-he Agency address i* sjJ. forth m Rule 

, 0101 of this Section, 
{2} "Agency head" means the State Board 
of Opticians , 

( c ) Copies of 22 vr AC, Subchapters 2 B a n d 
2Cr Mid 22 NCAC 2A .000,5 may- be inspected 
in the Administrative Procedures Section of 
the Attorney General's Office , ±02 Fayette villi- 
■ Street , Raleigh , North Carol i na . Copies may 
be obtained from the Administrative Proce - 
dures Section tot a charge of four dollars 
($4.00). 

(a) The following hearing division rules pro- 
mulgated Tv the Office 67 Administrative 



I learings, codified as I itle 26, Subchapter 3 o 
the North Carolina Administrative Code, ef- 
fective September 1, 



986, 



£3 



_ are herehy a (.lop 
by reference to apply to contested cases of the 
State Board oT ( )pticians: 



(_ 

lii 

Hi 

til 

LZi 

i§l 

121 

(TO) 

Ml) 
(12) 
(13 



1) 26 NCAC 3.0001 



26 NCAC 3.000: 



26 NCAC 3.1)004 
26 NCAC 3.0005 



26 NCAC 3.0006 
26 NCAC 3.0007 
26 NCAC 3. diids 
26 NCAC 3.0010 
26 NCAC 3.0011 
26 NCAC 3.0012 
26 NCAC 3.0013 
26 NCAC 3.0014 
26 NCAC 3.0015 

(14) 26 NCAC 3.0016 

(15) 26 NCAC 3.0017 
26 NCAC 3.0018 



(16) 

(_17) 
(18) 
(19) 

(20) 

(22} 

(23) 
f24] 

(25) 



26 NCAC 3.001') 
26 NCAC 3.0020 
26 NCAC 3.0021 



26 NCAC 3.0022 
26 NCAC 3.0023 
26 NCAC 3.0024 
26 NCAC 3.0025 
26 NCAC 3.0026 
26 NCAC 3.0027 



NORTH CAROLINA REGISTER 



405 



PROPOSED RULES 



(26) 26 NCAC 3.1)028 

(27) 26 NCAC 3.0029 

(b) l~h"e above-reterenced hearing division 
rules are adopted in accordance with" G.S. 
T>0B-i4(h). 

Statutory Authority G.S. 90-249. 

SECTION .0200 - CONDUCT OF 
REGISTRANTS 

.0206 CONTINUING EDUCATION 

Xk opt i cian shall keep the visual welfare of 
[ \\j p at ie n t u ppcrmo^ t at a ll 1 1 m 6 s promote t he 
he*t care of the visual needs of mankind , strive 
continuously to develop educat i onal a»J I 
nical proficiency and inform himself as to 
developments w i thin hi* profe s sion , in ke e p - 
iiw with tku pronouncement , all licensed op-. 
ticians shall ; 

uU m.iintain adequate equipment and in-. 
struments in La* at Iw*. otTice at all time s. 
to assure proper and complete senice 
to the public ; 
(2) assist his. or her client in whatever m a n - 
net poss i ble m obtaining further caw. 
when , in hi* or her opin i on , a ddition a l 
care is needed ; 
P4 maintain adequate and available records ; 
uU treat ail information conecm i ng his. cli- 
ents a* "privileged" and not to be com - 
municated to other* except when so 
a uthorised La. the patient ; 
lSj. take annual courses of study in subject s 
related and essenti a l to the practice ot 
opticiann for the purposes of enh a nc 
ing his. or her scientific knowledge and 
professional skills , gaining the benefit s 
of new. techniques , and a cquiring in- 
creased knowledge of North Carolin a 
law s governing the practice of optici - 
an ry , including rules and regulations 
promulgated thereunder . Each opt i cian 
who is certified a* a cont a ct leu* fitter 
y hal l t ake ^ \^\ a l of not 1 e s v ~ th an t wche 
hours of courses of stud} - e a ch calendar 
year a* follows ; 
Uu live hour s of study sh a ll be essenti a l to 

the practice of contact lens fitting ; 
(-U4 five hours of study sh a ll be e s sent i al 

to eyeglas s fitting and dispensing ; 
u-i one hour of study shall be on the 
North Carolina opticiann laws and 
rules and regulation s promulgated ther - 
eunder , and 
uii one hour of study may be on matters 
related to contact len* or bus i ness 
management and consumer protect i on . 



Aw optici a n who is not certified a* a 
contact len* fitter shall take five hours 
of study essential to eyegla s s f i tting and 
d i sp e ns i ng and one hour of study on the 
North Carolina opticiann' l aws and 
rules and regulation s promulgated ther - 
eunder each calendar year , -bhe c ourses 
of study must be previously approved 
and design a ted uv the North Carolina 
Stale Board of Opticians .. I . icensee s 
may attend one or more of said ap- 
proved courses , so long a* the aggregate 
attendance meets the requirements of 
the board for each su c h i ear A d d 1 - 
tion a lly , attendance at any course or 
courses for the requisite period must be 
certified to said hoard , and shall be 
submitted by. each registered optician 
at the time he makes application to the 
board for his renewal of license and 
payment of hi* ren e wal fee. Such cer- 
tification shall show the title of the 
course or courses t aken ax "ell a* wh e n 
and where they were taken. As to 
non - certilied contact len* fitters , the re* 
qui rem en ts prescribed herein shall only 
be waived in cases of cert i f i ed illness , 
military' assignment making rt impossi . 
ble to comply , or persons over 60 year* 
ot aue \Vjth respect to certified coftt act 
lens fitters , no exceptions , or waivers of 
the requirements pertaining to contact 
lens fitting shall apply , in order for a 
course to be a ccredited , the course must 
be open to aif licensees . Course con- 
tent and speaker qual i fications must 
also be reviewed and the course may be 
viewed by- a committee of the board . 
(a) The optician shall keep the visual welfare 
ofThe patient uppermost at alTTimes, promote 
th"e best care of the viTuaTneeds of mankind, 
stnve continuously tcT iievelop eTTucational and 
technical proficiency and inform himself as to 
new develo pments within his profes sion. In 



ipmeni 
th this 



<eeping wi 
optician s shall 



pronouncement, all licensed" 



1) 



(2) 



L22 
i4i 



maintain adequate equipment and in- 
struments m his her office at all times 
to assure proper and complete senice 
to the public; 

assist his or her client in whatever 
manner possible in obtaining further 
care when, m his or her opinion, addi- 
tional care is needed; 
maintain adequate and available records; 
treat all information concerning his cli- 
ents as 

municated to others 
authorized by the patient; 



'privileged" and not to be com- 
excegt when so 



406 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



(5) take annual courses of study in subjects 
related and essential to the practice of 
opticianry for the purposes of enhanc- 
iim his or Her scientific knowledge and 
professional skills, gaining the ben efits 
of new techniques, and acquiring in- 
creased knowledge ot North Carolina 
laws governing the practice a\_ optici- 
anry, including rules ang regulations 
promulgated thereunder. 

(b) bach optician who is certified as a con- 
tact lens fitter shall take a total of not less than 
ten hours of courses of study each calendar 
year as follows: 

( 1 ) five hours of study shall be essential to 
the practice of contact lens fitting: 

(2) four hours of study shall be essential to 
e\ eglass fitting and dispensing or. in lieu 
thereof, three hours of study shall be 
essential to eyeglass fitting and dispens- 
inu and one hour of study shall be on 
business management and consumer 
protection: and 

(3) one hour of study shall be on the North 
Carolina opticianry laws and rules and 
regulations promulgated thereunder. 

(c) An optician who is not certified as a 
contact lens fitter shall take a total of not less 
than five hours of continuing education each 
year as follows: 

( 1 ) four hours of study shall be essential to 
evciilass fitting and dispensing or, in lieu 
thereof, three hours of study shall be 
essential to eyeglass fitting and dispens- 
ing and one hour of study shall be on 
business management and consumer 
protection: and 

(2) one hour of study shall be on the North 
Carolina opticianry laws and rules and 
regulations promulgated thereunder. 

(d) Courses of study must be previously ap- 
pro ved and designated by the North Carolina 
State Board of Opticians. 1 teensees may at- 
tend one or more of said approved courses, so 
long as the aggregate attendance meets the re- 
quirements of the board for each year. Addi- 
tionally, attendance at any course or courses 
for the requisite period must be certified to said 
board, and shall be submitted by each regis- 
tered optician at the time he makes application 
to the hoard for his renewal of License and 
payment of his renewal fee. Such certification 
shall show the title of the course or courses 
taken, as well as when and where they were 
taken. In order for a course to be accredited. 



the course must be open to all North Carolina 
licensees. Course content and speaker quali- 
fications mav be viewed By the board. 



(e) As to non-certified contact lens fitters, the 
requirements prescribed herein shall only "Be 
waived in case ot certilied illness, military as- 
signmcnt making it_ impossible to comply, or 
persons over 65 years ot age . With respect to 
certified contact lens litters, no exceptions or 
waiver ot the requirements pertaining to eon- 
tact lens~fitting~shall apply. 

(f) Any North Carolina licensed optician 
wTio is not certilied to tit contact lenses and 
who is not practicing opticianry in North Ca- 
rolina shall annually obtain no less than live 
hours ot study essential to eyeglass fitting and 
dispensing which have been approved b\ the 
American Board of Opticianry. Any North" 
Carolina~certified contact lens fitter who is not 
practicing opticianry in North Carolina shall 
annual!) take no less Tnan ten hours ot study 
as follows: 

( 1 ) live hours of study, as approved bv the 
American Board of Opticianry, shall " Be 
essential to eyeglass fitting and dispens- 
ing: and 

(2) live hours of study, approved by the 
National Contact lens Examiners, shall 
be essential to contact lens fitting. 

Statutory Authority G.S. 90-249; 93D-3. 

.0208 LICENSE REVOCATION 
AM) REINSTATEMENT 

(c) The procedures for revocation and sus- 
pension of a license or refusal to grant license 
or permission to sit for the examination shall 
be in accordance with the provisions of Chap- 
ter ISO A 150B of the General Statutes and 
Rule .OllfoTthe board. 

Statutory Authority G.S. 90-249. 

.0212 DUTY TO PROVIDE DIRECT 
SUPERVISION 

The failure of a licensed optician, under 
whose name an optical place of business or 
branch thereof is registered, to provide direct 
supervision of an unlicensed person working 
at such business or branch and performing 
other than minor adjustments or repairs to 
eyeglass shall constitute a violation of this 
Rule. 

Statutory Authority G.S. 90-239; 90-253. 

SECTION .0300 - QUALIFICATIONS: 
APPLICATIONS: AND LICENSING 

.0303 ELIGIBILITY FOR 

EXAMINATION AND 
RE EXAMINATION 



NORTH CAROLINA REGISTER 



407 



PROPOSED RULES 



(d) The exam shall consist of an. eyegl a s s a 
written part and a practical part. No license 
will be issued until a passing score has been 
achieved on both parts within three years. If 
the two parts are taken at different exam ses- 
sions, an examination fee must be paid for 
each session. An optician may obtain license 
without contact lens certification after passage 
of the exam described in this Section or by re- 
newal of a license in force prior to adoption 
of this Rule. 

Statutory Authority G.S. 90-240. 

.0312 RECOGNIZED SCHOOLS OF 
OPTICIANRY 

A school of opticianry shall be. cons i dered 
rccogni/ . cd by. the N , i, . ' , State Uoard o£ Opti - 
cians if it is accredited by. the Commission on 
Opticianry Accreditation, Post Office fie* 
1 909 1 , Washington, IXC 20036, and. confers 
J44. associate ui applied science degree , 
ophthalmic dispensing progr a ms , 

A school of opticianry shail be considered 
recognized bv the North Carolina State Board 
of ( )pticians if it is accredited by the Commis- 
sion of Opticianry Accreditation, and confers 
a degree of associate in applied science through 
an opthaknic dispensing program. 

Statutory Authority G.S. 90-249. 



T„ 



he public hearing will be conducted at 9:00 
a.m. on December 14, 1987 at 101 West Peace 
Street, Raleigh, NC. 



a 



omment Procedures: Interested persons 
may present statements orally or in writing at 
the hearing or in writing prior to the hearing by 
mail addressed to: Drake Maynard, Office of 
Slate Personnel, 116 West Jones Street, Ra- 
leigh, North Carolina 276/1. 

CHAPTER 1 - OFFICE OF STATE 
PERSONNEL 

SUBCHAPTER IE - EMPLOYEE 
BENEFITS 

SECTION .0700 - WORKER'S 
COMPENSATION LEAVE 

.0701 USE OF LEAVE (REPEALED) 
.0702 RESPONSIBILITY OF EMPLOYER 

AND EMPLOYEE (REPEALED) 
.0703 CONTINUATION OF BENEFITS 

(REPEALED) 

Statutory Authority G.S. 126-4; 97-22. 

TITLE 26 - OFFICE OF 
ADMINISTRATIVE HEARINGS 



.0320 LICENSE RENEWAL 
INFORMATION 

(c) Any licensee 70 years old or older who 
is h*ai a certified contact lens, titter may be is- 
sued a lifetime honorary opticians license. A 
recipient of a lifetime honorary opticians li- 
cense shall be exempt from the renewal fee re- 
quirements. 



Statutory 
90-246(3). 



Authority 



G.S. 90-244(b); 



TITLE 25 - OFFICE OF STATE 
PERSONNEL 



No 



otice is hereby given in accordance with 
G.S. 1 SOB- 12 that The Office of State Person- 
nel intends to repeal regulations cited as 25 
NCAC 1E.070I~.0703. 



No 



otice is hereby given in accordance with 
G.S. I SOB- 12 that The Office of Administrative 
Hearings intends to amend and repeal regu- 
lations cited as 26 XCAC 3 .0025 and .0026. 



T„ 



he proposed effective date of this action is 
December 1. 1987. 



T„ 



he public hearing will be conducted at 10:00 
a.m. on October 15, 1987 at Hearing Room I , 
Lee House, 422 N. Blount St.. Raleigh, NC. 



a 



omment Procedures: Comments may be 
submitted in person or in writing at the public 
hearing or in writing prior to October 15, 1987, 
to Sabra Faires, Executive Legal Specialist. P. 
O. Drawer 11666, Raleigh, XC 27604. 

CHAPTER 3 - HEARINGS DIMSION 



T* 



he proposed effective date of this action is 
February I. I9S8. 



.0025 HEARLNG OFFICER'S PROPOSAL 
FOR DECISION: EXCEPTIONS 
(REPEALED) 



408 



NORTH CAROLINA REGISTER 



PROPOSED RULES 



Statutory Authority G.S. 150B-34. 

.04)26 ADMINISTRATIVE LAW JUDGE'S 
RECOMMENDED DECISION 

U4 Ik hearing officer shall , with i n ill days 
a l ter the expiration el the period for- filing ex* 
captions ta the bearing officer's proposed de- 
cision, prepare and sews upon all parties his 
recommended decision , op i nion , order , or i-e- 
port which shall become a p-uo. at the official 
record iu the case and which shall contain : 
(44 All of the items specified m Subpara . 
graph x 44U2a (c)(1) through (8) of this 
Chapter ; and 
Q) A statement identifying the a gency that 
iv+ll make the final decision in the c as e . 
Uxt 4-he hearing officer shall promptly lot- 
ward a copy of the offic i al record m the case 
ta the agency . 
U4 Intension s of time limits . 
(-14 1 , 'pon good cause s hown , the Chief 
Admin i strative I aw Judge may extend 
the time limits far submission at the 
proposed decision , filing of exceptions , 
.ma far issuing the recommended deci - 
s ion of the hearing officer . 
Requests fwr extens i ons must he sub - 
m i tted prior la the expiration of the 
period established bs. these Rules , 



UU 



P4 



Extensions shall not be granted if u 
tention or procrastination cause delay. 



but shall be granted it the delay is at- 
tributable ta honest mistake , accident , 
or any- cause compatible with proper 
diligence . 
(a) An administrative law judge shall issue a 
recommended decision or order in a contested* 
case within 45 days after the conclusion of the* 
contested case hearing. The administrative law 
judge shall serve a copy of the decision on each 
party. When an administrative law~]"id~ge is- 
sues a recommended decision, the Otlice "of 
Administrative I learings shall promptly for- 
ward the official record in the case to the 
agenc> making the final decision. 



(b) A recommended decision shall be based 
exclusively on: 

( 1) competent evidence and arguments 
presented during the hearing and made 
a part of "the official record; 

(2) stipulations of fact; 

(3) matters otticlally noticed; and 

(4) other items in the official record that are 

not e^l^glg 'by ^f n^JHlElkl; 

(c) A recommended " JecTsion shall fully dis- 
pose o? all 



and shall contain: 



.■qui 



to resolve the case 



( 1) an appropriate caption; 

( 2 ) t"Ke appearances of """"""T parties; 

(3) a statement ot the issues; 

(4) relerences to specihc statutes or rules at 
issue; 

(5) findings of fact . with specific reasons 
given lor findings on disputed facts; 

(6) conclusions of law~Fased on theluulings 
o^ tact and~applicahle constitutional 
principles, statutes, rules, or federal "re"" 
gulations~ 

(7) in the discretion of the administrative 
law judge, a memorancTum giving legaT 
reasons tor the conclusions of law; 

(8) a statement identifying the agency that 
will makeT he final decision; and 

(9) a statcment~~tTJat each party has the right 
To tile exception-, to the recommended 
decision with the" agency making the fi- 
nal decision and has the right to present 
written arguments on the decision to 
the agency making tKe final decision. 

(d) For good cause shown, the chief admin- 
istrative law judge may extend the 45-day time 
limit for issuing a recommended~TJecision. An 
administrative law judge who needs an exten- 
sion must submit a request tor extension to the 
chief administrative law juTJge before the 45- 
day period has expireTJ~ 

Filed as a Temporary Amendment Eff August 
26, 1987 for a Period of 120 Days to Expire on 
December 24, 1987; Statutory Authority G. S. 
150B-34. 



NORTH CAROLINA REGISTER 



409 



FINAL RULES 



W„ 



hen the text of any adopted rule dif- 
fers from the text of that tide as proposed, 
upon request from the adopting agency, the 
text of the adopted rule will he published 
in this section. 



Wh 



hen the text of any adopted rule is 
identical to the text of that as proposed, 
adoption of the rule will be noted in the 
"List of Rules Affected" and the text of the 
adopted rule will not be republished. 



A 



dopted rides filed by the Departments 
of Correction. Revenue and Transportation 
are published in this section. These de- 
partments are not subject to the provisions 
of G.S. I SOB, Article 2 requiring publica- 
tion of proposed rules. 



TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 



.0608 LENGTH 

(a) Lengths are generally limited to 85'-0" 
including towing vehicle. If the route to be 
traveled does not include corners, consider- 
ation may be given to longer loads. When 
length, including towing vehicle exceeds 85', 
and route to be traveled requires negotiating 
corners, a steering trailer and escort vehicle 
may be required. Certain loads such as poles, 
girders, trusses over 55' in overall length which 
do not exceed legal weight or width may be 
moved without permit during the daytime if 
they are one integral unit. 

(b) Lxtcnded period permits for lengths ex- 
ceeding 65' will not be issued except for mobile 
home delivery units. These may be issued to 
91'-0" when a 15' towing unit is employed. 
Lxtended period permits are issued by the 
central permit office only. "Single trip permits 
may be issued for the movement of mobile 
homes on designated routes with a 15' towing 
unit not to exceed 95-0" combination 
length." 

(c) Front overhang shall not exceed the sta- 
tutory limit of 3' beyond front bumper unless 
shown to be impractical to load otherwise and 
not create a safety hazard. 



CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2D - HIGHWAY 
OPERATIONS 

SECTION .0600 - TECHNICAL SERVICES 



History Xote: Statutory Authority G.S. 
20-116; 20-119; 136-18(5); 
Board of Transportation Minutes for 
February 16, 1977 and November 10. 1978; 
Eff July 1, 1978; 

Amended Eff. October I, 1987; April I. 1984; 
February I, 1983; April II. 1980. 



410 



NORTH CAROLINA REGISTER 



LIST OF RULES AFFECTED 



NORTH CAROLINA ADMINISTRATIVE CODE 
LIST OF RULES AFFECTED 



EDITION XII, NO. 6 




AGENCY 




Department of Agricu 


tii re 




2 NCAC 


9L 


.0501 

.0517 




26A 


.0001-. 0002 




26B 


.0001-.0003 




26C 


.0001-.0002 




26D 


.0001-.0002 




27A 


.0001-.0003 




27B 


.0001-.0002 




27C 


.0001-.0002 




28A 


.0001-.0003 




28B 


.0001-.0002 




28C 


.0001-. 0002 




34 


.0201-.0202 
.0311 
.0315 
.0602 




42 


.0202 


Governor's Office 






9 NCAC 


2 





EFFECTIVE: September 1, 1987 
ACTION TAKEN 



Repealed 
Amended 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Repealed 
Amended 
Amended 



Executive Order Number 51 
Eff. July 14, 1987 



Department of Human Resources 

10 NCAC 42B .1201 

.1203 

42C .2001 
.2212 
.2302-. 2303 

49C .0101 

.0301-.0302 

50B .0313 



Department of Insurance 

11 NCAC 8 .0203 

.0204-.0210 

Department of Justice 

12 NCAC 9B .0606 

.0608 

Department of Labor 



Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Amended 

Temp. Amended 

Expires 10-31-87 



Amended 
Repealed 



Amended 
Amended 



NORTH CAROLINA REGISTER 



411 



LIST OF RULES AFFECTED 



13 



NCAC 1C .0104 



Adopted 



Department of Natural Resources and Community Development 



15 NCAC 3B 


.0102 


Amended 




.0105 


Amended 




.0304-.0306 


Amended 




.0308 


Amended 




.0404 


Amended 




.0501 


Amended 




.0503-. 0504 


Amended 




.0701 


Amended 




.0801 


Amended 




.0901 


Amended 




.0905 


Amended 




.1002 


Amended 




.1101 


Amended 




.1109 


Amended 




.1111 


Amended 




.1404-. 1405 


Amended 




.1601-. 1605 


Adopted 


13N 


.0101-.0104 


Adopted 




.0201-. 0202 


Amended 




.0301-.0303 


Amended 




.0401-. 0402 


Amended 




.0501 -.0505 


Amended 




.0601-. 0604 


Amended 


Hoard of Medical lAumincrs 






21 NCAC 32B 


.0110 


Amended 


37 


.0519 


Temp. Amended 
Expires 12-31-87 


Office of State Personnel 






25 NCAC IB 


.0412 


Repealed 




.0414-.0415 


Adopted 




.0421 -.0424 


Adopted 




.0427-. 0434 


Adopted 


111 


.0608 


Repealed 




.0610-. 0613 


Adopted 



412 



NORTH CAROLINA REGISTER 



\C AC INDEX 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT 



I 

2 
3 
4 
5 
6 
7 
x 
9 
10 

11 

12 
13 

14A 
15 
16 
17 
18 
19A 
20 
*21 
22 

23 
24 
25 
26 



Administration, Department of 

Agriculture, Department of 

Auditor, Department of State 

Commerce, Department of 

Corrections, Department of 

Council of State 

Cultural Resources, Department 

Elections, State Board of 

Governor 

Human Resources, Department of 

Insurance, Department of 

Justice, Department of 

Labor, Department of 

Crime Control, Department of 

Natural Resources and Community Development 

Education, Department of 

Revenue, Department of 

Secretary of State 

Transportation, Department of 

Treasurer, Department of State 

Occupational Licensing Boards 

Administrative Procedures 

Community Colleges, Department of 

Independent Agencies 

Personnel, Department of State 

Office of Administrative Hearings 



NOTE: Title 21 contains the chapters of the various occupational licensing boards. 
CHAPTER LICENSING BOARD 

2 Architecture, Board of 

4 Auctioneers, Commission for 

6 Barber Examiners, Board of 

8 Certified Public Accountant Examiners 

10 Chiropractic Examiners, Board of 

12 Contractors, I icensing Board for 

14 Cosmetic Art Examiners, Board of 

16 Dental Examiners, Board of 

1 8 Electrical Contractors, Board of Examiners 

20 Foresters, Board of Registration for 

21 Geologists, Board of 

22 Hearing Aid Dealers and Fitters Board 
26 Landscape Architects, Licensing Board of 

28 Landscape Contractors, Registration Board of 

3 1 Martial & Family Therapy Certification Board 

32 Medical Fxamincrs. Board of 

33 Midwifery Joint Committee 

34 Mortuary Science, Board of 

36 Nursing, Board of 

37 Nursing Home Administrators, Board of 

38 Occupational Therapist, Board of 
40 Opticians, Board of 



NORTH CAROLINA REGISTER 



413 



NC AC INDEX 



42 
44 
46 
48 
50 
52 
53 
54 
56 
58 
60 
62 
63 
64 

66 



Optometry, Hoard of Examiners in 
Osteopathic Examination and Registration 
Pharmacy, Board of 

Physical Therapy, Examining Committee of 
Plumbing and Heating Contractors, Board of 
Podiatry Examiners, Board of 
Practicing Counselors, Board of 
Practicing Psychologists, Board of 
Professional Engineers and Eand Surveyors 
Real Estate Commission 
Refrigeration Examiners, Board of 
Sanitarian Examiners, Board of 
Social Work, Board of 
Speech and Eanguage Pathologists and 
Audiologists, Board of Examiners of 
Veterinary' Medical Board 



414 



NORTH CAROLINA REGISTER 



CUMULA TIVE INDEX 



CUMULA TIVE INDEX 

(April 1987 - March 1988) 



1987 - 1988 

Pages Issue 

1-137 April 

138-169 May 

170-198 June 

199-285 July 

286-364 August 

365 - 417 September 



AO - Administrative Order 

AG - Attorney General's Opinions 

C - Correction 

E - Errata 

EO - Executive Order 

FDL - Einal Decision Letters 

ER - Final Rule 

GS - General Statute 

JO - Judicial Order 

ERA - Eist of Rules Affected 

M - Miscellaneous 

NP - Notice of Petitions 

PR - Proposed Rule 

SO - Statements of Organization 

TR - Temporary Rule 

ADMINISTRATION 

Auxiliary Services, 203 PR 

Property and Construction, 388 PR 

State Construction, 388 PR 

State Employees Combined Campaign, 13 PR, 334 PR 

AGRICULTURE 

Eood and Drus Protection, 204 PR 

Markets, 206 PR 

N. C. State Pair, 205 PR 

Pesticide Board, 13 PR 

Standards Division, 206 PR 

Structural Pest Control, 205 PR, 393 PR 

Veterinary, 209 PR 

COMMERCE 

Departmental Rules, 14 PR, 143 PR 
Credit E'nion Division, 334 PR 
Savings & loan Division, 147 PR 

COMMUNITY COLLEGES 

Community Colleges, 270 PR 



NORTH CAROLINA REGISTER 415 



CUMULA TIVE INDEX 



CORRECTION 

Division of Prisons, 105 PR, 190 FR, 275 FR 

Parole Commission, 106 FR 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, 159 PR 
Victim and Justice Services, 342 PR 



EXECUTIVE ORDERS 






Executive Orders 34 - 


42, 1 


EO 


43 - 


46, 138 


EO 


47 - 


49, 171 


to 




50. 199 


FO 


51 - 


53, 288 


FO 




54, 384 


FO 



FINAL DECISION LETTERS 

Voting Rights Act. 10 FDL. 141 FDF. 200 FDF, 291 FDF, 385 FDL 

GENERAL STATUTES 

Chapter 7A. 382 GS 
Chapter 143B. 2S6 GS 
Chapter 150B. 366 GS 

HUMAN RESOURCES 

AFDC, 156 PR 

Facility Sen-ices, 174 PR. 211 PR. 393 PR 
Familv Services. 152 PR 
Health Services, 237 PR 
Individual and Familv Support. 153 PR 
Medical Assistance. 174 PR. 24S PR. 339 PR. 396 PR 
Medical Sen-ices. 149 PR 
Mental Health Retardation 
and Substance Abuse. 15 PR. 247 PR. 337 PR 
Notice. 170 C 
Social Sen'ices Commission. 397 PR 

INDEPENDENT AGENCIES 

Housing Finance. 355 PR 

INSURANCE 

Life Accident & Health Division, 17 PR 

JUSTICE 

Education and Training Standards, 19 PR 
N.C. Alarm Systems, 341 PR 
Private Protective Senices, 249 PR 

LICENSLNG BOARD 

CPA, 269 PR. 351 PR 

Chiropractic Examiners, 178 PR 

Medical Examiners. 95 PR. 403 PR 

Mortuary Science. 404 PR 

Nursina Home Administrators. 182 PR 

Opticians. 404 PR 

Real Estate. 352 PR 

LIST OF RULES AFFECTED 

Volume 12. No. 1 



416 NOR TH CAROLINA REGIS TER 



CUMULA TIVE INDEX 



(April I, 1987), 131 LRA 
Volume 12, No. 2 
(May 1, 1987), 163 LRA 
Volume 12, No. 3 
(June 1, 1987), 193 LRA 
Volume 12, No. 4 
(July 1, 1987), 277 LRA 
Volume 12, No. 5 
(August 1, 1987), 358 LRA 
Volume 12, No. 6 
(September 1, 1987), 411 LRA 

NATURAL RESOURCES AND COMMUNITY DEVELOPMENT 

Coastal Management, 94 PR, 160 PR, 259 PR, 347 PR, 365 C, 401 PR 

Economic Opportunity, 161 PR 

Environmental Management, 29 PR, 249 PR, 346 PR 

Marine Fisheries, 84 PR, 255 PR 

Wildlife Resources, 175 PR, 268 PR 

OFFICE OF ADMINISTRATIVE HEARINGS 

Hearings Division, 408 PR 

PUBLIC EDUCATION 

Llementary and Secondary, 348 PR 

REVENUE 

Individual Income lax, 107 FR 
Motor Fuels lax, 108 FR 

STATE PERSONNEL 

Employee Iknefits, 183 PR, 408 PR 
State Personnel Commission, 96 PR 

STATE TREASURER 

Departmental Rules, 161 PR 
Educational Facilities, 349 PR 
Investment Program, 177 PR 

STATEMENTS OF ORGANIZATION 

Statements of Organization, 295 SO 

TRANSPORTATION 

Division of Highways, 410 FR 
Motor Vehicles, 109 FR 



NOR TH CA ROLINA REGIS TER 417 



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